New Jersey

Open Government Guide

Author

Foreword

Open Records. On January 8, 2002, Acting Governor, Donald DiFrancesco, signed into Law a new Open Public Records Act ("OPRA").

The statute makes significant improvements to the prior Right to Know Law:

The law provides a succinct definition of "public record" which will assist custodians in providing access while at the same time excluding from the definition records not kept by a public officer in the course of his/her official business.

The law provides a uniform system for requesting records and responding to requests as well as a timeframe within which the custodian must respond to the request — a significant omission in the prior Right to Know Law.

The law preserves the existing court review of access disputes and provides a less expensive alternative administrative review, at the requestor's option, through the Government Records Council.

The law provides for penalties for a knowing and willful violation of the law and allows for the recovery of reasonable attorney’s fees by a requestor who prevails in a proceeding to gain access.

The law preserves the common law right of access.

The law provides for access to records stored or maintained electronically.

Open Meetings.

In 1975 the New Jersey Legislature enacted the Open Public Meeting Act, N.J.S.A. 10:4-6, et seq, commonly known as the "Sunshine Law." While some of the provisions of this Act had been included in prior legislation (See N.J.S.A. 10:4-1 to 5, repealed by L.1975, c.231), the Legislature saw the need for a stronger statute in order to prevent the public and the press from being "needlessly barr[ed] . . . from certain policymaking meetings of public bodies." Introductory Statement of Assembly No. 1030 — L.1975, c.231. The Sunshine Law was intended by the Legislature to establish comprehensive and uniform procedures at all levels of government to insure

that the public and the press have advance notice of and the opportunity to attend most meetings, including executive sessions, of all public bodies . . . .

Evidence of the strong public policies which underlie the Sunshine Law and which govern its application is expressed in the preamble to the legislation, which states:

The Legislature finds and declares that the right of the public to be present at all meetings of public bodies, and to witness in full detail all phases of the deliberation, policy formulation, and decision making of public bodies, is vital to the enhancement and proper functioning of the democratic process [and] that secrecy in public affairs undermines the faith of the public in government and the public's effectiveness in fulfilling its role in a democratic society . . . .

N.J.S.A. 10:4-7.

The extent to which the courts would go to fulfill and implement the public policies expressed by the Legislature was demonstrated in the 1977 decision in Polillo v. Deane, 74 N.J. 562, 379 A.2d 211 (1977), the first New Jersey Supreme Court case involving the Sunshine Law. In Polillo the issues before the Supreme Court were the extent to which the Atlantic City Charter Study Commission had violated the Sunshine Law and what remedies should be imposed for violation.

The charter study commission had been established by voter referendum to consider the merits of adopting a new form of government. In performing this function, the commission held meetings and hearings, some of which did not comply fully with the notice requirements of the Sunshine Law. The commission recommended that there be a voter referendum on adopting a "strong mayor" form of government. The referendum was thereafter placed on the ballot, and the voters of Atlantic City overwhelmingly adopted this new form of government.

Even though most of the commission's meetings had been well-publicized ahead of time and the hearings involved substantial public attendance and participation, the court found that there must be "strict adherence to the letter of law" with respect to the notice requirements of the Sunshine Law. Since strict adherence had not taken place, the court ruled that the vote of the commission to recommend a referendum must be invalidated, along with the voter referendum approving the new form of government. It ordered the commission to "embark again" on its task of considering a new form of government for Atlantic City.

The Supreme Court's decision in Polillo set the tone for all subsequent court decisions on interpretation and application of the Sunshine Law. And to a great extent the lower courts have required "strict adherence to the letter of the law" and have liberally construed the Sunshine Law to accomplish its purpose and the public policy of New Jersey. See N.J.S.A. 10:4-21.

Open Records

I. Statute

A. Who can request records?

1. Status of requester

Under OPRA, any "citizen of this State" has the right to inspect and copy public records. N.J.S.A. 47:1A-1. Although OPRA expressly provides that “government records shall be readily accessible…by citizens of this State” (N.J.S.A. 47:1A-1), the New Jersey Attorney General’s Office has advised of its position that OPRA does not prohibit access by residents of other States.

Under the common law, the applicant must have an interest in the subject matter of the material sought, but the media's role as the "eyes and ears of the public" is usually sufficient to confer standing. Home News v. New Jersey Dept. of Health, 144 N.J. 446, 454, 539 A.2d 736 (1996).

2. Purpose of request

Under OPRA, the purpose for requesting the public records is irrelevant. See Williams v. Board of Education of Atlantic City Public Schools, 329 N.J. Super. 308, 747 A.2d 809 (App. Div. 2000) cert. denied 165 N.J. 488, 478 A.2d 648. Under the common law, more than citizen status and good faith are necessary when there is a compelling governmental need for confidentiality. Loigman v. Kimmelman, 102 N.J. at 105-106 (1986).

3. Use of records

4. Can an individual request records on behalf of a third party or organization?

B. Whose records are and are not subject to the Act

1. Executive branch

In general, all government records are subject to access under OPRA, unless specifically exempted. Certain Executive Branch records have been exempted. The following records maintained by the office of the Governor, or part thereof, shall not be deemed to be government records under OPRA:

Any record made, maintained, kept on file or received in the course of its official business which is subject to an executive privilege or grant of confidentiality established or recognized by the Constitution of this State, statute, court rules or judicial case law.

All portions of records, including electronic communications, that contain advisory, consultative or deliberative information or other records protected by a recognized privilege.

All portions of records containing information provided by an identifiable natural person outside the Office of the Governor which contains information that the sender is not required by law to transmit and which would constitute a clearly unwarranted invasion of personal privacy if disclosed.

If any of the foregoing records shall contain information not exempted by the provision of the Open Public Records Act or the preceding subparagraphs (a), (b), or (c) hereof then, in such event, that portion of the record so exempt shall be deleted or excised and access to the remainder of the records shall be promptly permitted.

(See Executive Order 26)

Records relating to petitions for executive clemency are not public records under OPRA. (See Executive Order No. 9)

N.J.S.A. 47:1A-1.1 provides that a government record shall not include the following information which is deemed to be confidential:

any copy of an oath of allegiance, oath of office or any affirmation taken upon assuming the duties of any public office, or that oath or affirmation, taken by a current or former officer or employee in any public office or position in this State or in any county or municipality of this State, including members of the Legislative Branch, Executive Branch, Judicial Branch, and all law enforcement entities, except that the full name, title, and oath date of that person contained therein shall not be deemed confidential

2. Legislative bodies

A government record shall not include information received by a member of the Legislature from a constituent or information obtained by a member of the legislature concerning a constituent, including but not limited to, information in written form or contained in any e-mail or computer database, or in any telephone record whatsoever, unless it is information the constituent is required by law to transmit.

A government record shall also not include any memorandum, correspondence, notes, report or other communication prepared by or for the specific use of a member of the Legislature in the course of the member's official duties, except that this provision shall not apply to an otherwise publicly accessible report that is required by law to be submitted to the Legislature or its members.

3. Courts

OPRA does not address court records. However, New Jersey Court Rule 1:38-1 provides that “Court records and administrative records as defined by R. 1:38-2 and R. 1:38-4 respectively and within the custody and control of the judiciary are open for public inspection and copying” with certain specific exceptions, which are to be “narrowly construed in order to implement the policy of open access to records of the judiciary.”

4. Nongovernmental bodies

OPRA applies to records of any officer, commission, agency or authority of the State or of any political subdivision thereof, including subordinate boards thereof. (SeeN.J.S.A. 47:1A-1.1). Consequently, records of non-governmental bodies are generally not subject to the law. However, there may be circumstances under which a governmental entity is not excused from its OPRA obligations simply because the requested records are not in its possession. SeeBurnett v. County of Gloucester, 415 N.J. Super 506 (2010) (finding that “the settlement agreements at issue here [and in the possession of the County's insurance broker, one of the County's insurers, or outside counsel, but not in the possession of the County] were ‘made’ by or on behalf of the Board in the course of its official business. Were we to conclude otherwise, a governmental agency seeking to protect its records from scrutiny could simply delegate their creation to third parties or relinquish possession to such parties, thereby thwarting the policy of transparency that underlies OPRA. N.J.S.A. 47:1A-1.1.”)

6. Advisory boards and commissions, quasi-governmental entities

7. Others

C. What records are and are not subject to the act?

1. What kinds of records are covered?

All "government records" shall be subject to access unless specifically exempt from such access. "Government record" or "record" means any paper, written or printed book, document, drawing, map, plan, photograph, microfilm, data processed or image processed document, information stored or maintained electronically or by sound-recording or in a similar device, or any copy thereof, that has been made, maintained or kept on file in the course of his or its official business by any officer, commission, agency or authority of the State or of any political subdivision thereof, including subordinate boards thereof, or that has been received in the course of his or its official business by any such officer, commission, agency, or authority of the State or of any political subdivision thereof, including subordinate boards thereof.

2. What physical form of records are covered

A custodian shall permit access to a government record and provide a copy thereof in the medium requested if the public agency maintains the record in that medium. If the public agency does not maintain the record in the medium requested, the custodian shall either convert the record to the medium requested or provide a copy in some other meaningful medium.

5. Electronic records (e.g., databases, metadata)

a. Can the requester choose a format for receiving records?

A custodian shall permit access to a government record and provide a copy thereof in the medium requested if the public agency maintains the record in that medium. If the public agency does not maintain the record in the medium requested, the custodian shall either convert the record to the medium requested or provide a copy in some other meaningful medium. (See N.J.S.A. 47:1A-5(d)).

b. Can the requester obtain a customized search of computer databases to fit particular needs

Generally, yes, as long as the customized search appropriately identifies the information sought and the custodian does not have to make subjective judgments to determine the nature of the information covered by the request and is performing a search, not research. The definition of a government record includes “information stored or maintained electronically.” N.J.S.A. 47:1A-1.1. N.J.S.A. 47:1A-5(d) permits the imposition of a special service charge “if a request is for a record…(3) requiring a substantial amount of manipulation or programming of information technology.”

In Paff v. Galloway Township, 229 N.J. 340 (2017), the requestor sought specific fields of information (specifically, the sender, recipient, date and subject) in emails sent by the Township Clerk and Chief of Police over a two week period. The requestor did not seek the emails themselves, only these specific fields of information. The New Jersey Supreme Court found that these fields of information constituted government records under OPRA (subject to any applicable exemptions/redactions). The Court concluded that “[e]xtracting that kind of information requires ‘programming of information technology,’…a function the Legislature clearly envisioned the municipality performing, provided it has the means of doing so. Id. at 354.

c. Does the existence of information in electronic format affect its openness?

d. Online dissemination

N.J.S.A. 47:1A-5(d) provides:

A custodian shall permit access to a government record and provide a copy thereof in the medium requested if the public agency maintains the record in that medium. If the public agency does not maintain the record in the medium requested, the custodian shall either convert the record to the medium requested or provide a copy in some other meaningful medium. If a request is for a record: (1) in a medium not routinely used by the agency; (2) not routinely developed or maintained by an agency; or (3) requiring a substantial amount of manipulation or programming of information technology, the agency may charge, in addition to the actual cost of duplication, a special charge that shall be reasonable and shall be based on the cost for any extensive use of information technology, or for the labor cost of personnel providing the service, that is actually incurred by the agency or attributable to the agency for the programming, clerical, and supervisory assistance required, or both.

6. Email

7. Text messages and other electronic messages

8. Social media posts

9. Computer software

A government record shall not include the following information which is deemed to be confidential for the purposes of P.L.1963, c.73 (C.47:1A-1 et seq.) as amended and supplemented:

* * *
trade secrets and proprietary commercial or financial information obtained from any source. For the purposes of this paragraph, trade secrets shall include data processing software obtained by a public body under a licensing agreement which prohibits its disclosure;

(Emphasis added.)

There are no reported cases in New Jersey that expressly hold that metadata is accessible under OPRA. However, OPRA defines a “government record” broadly as any paper, written or printed book, document, drawing, map, plan, photograph, microfilm, data processed or image processed document, information stored or maintained electronically or by sound-recording or in a similar device, or any copy thereof, that has been made, maintained or kept on file in the course of his or its official business by any officer, commission, agency or authority of the State or of any political subdivision thereof, including subordinate boards thereof, or that has been received in the course of his or its official business by any such officer, commission, agency, or authority of the State or of any political subdivision thereof, including subordinate boards thereof.

Thus, it appears that metadata would fall within this definition and would be considered a government record, subject to access, unless it falls within a particular exemption. See also Paff v. Galloway Twp., 229 N.J. 340, 353 (2017).

10. Can a requester ask for the creation or compilation of a new record?

D. Fee provisions

1. Types of assessable fees (e.g., for search, review, duplication) and levels or limitations on fees

Except as otherwise provided by law or regulation, the fee assessed for the duplication of a government record embodied in the form of printed matter shall be $0.05 per letter size page or smaller, and $0.07 per legal size page or larger. If a public agency can demonstrate that its actual costs for duplication of a government record exceed the foregoing rates, the public agency shall be permitted to charge the actual cost of duplicating the record. The actual cost of duplicating the record, upon which all copy fees are based, shall be the cost of materials and supplies used to make a copy of the record, but shall not include the cost of labor or other overhead expenses associated with making the copy except as provided for in subsection c. of this section. Access to electronic records and non-printed materials shall be provided free of charge, but the public agency may charge for the actual costs of any needed supplies such as computer discs.

(See N.J.S.A. 47:1A-5(b)).

No fee shall be charged to a victim of a crime for a copy or copies of a record to which the crime victim is entitled to access, as provided in section 1 of P.L.1995, c. 23 (C.47:1A-1.1). N.J.S.A. 47:1A-5(b)(2).

2. Particular fee specifications or provisions

Whenever the nature, format, manner of collation, or volume of a government record embodied in the form of printed matter to be inspected, examined, or copied pursuant to the Act is such that the record cannot be reproduced by ordinary document copying equipment in ordinary business size or involves an extraordinary expenditure of time and effort to accommodate the request, the public agency may charge, in addition to the actual cost of duplicating the record, a special service charge that shall be reasonable and shall be based upon the actual direct cost of providing the copy or copies; provided, however, that in the case of a municipality, rates for the duplication of particular records when the actual cost of copying exceeds the rates set forth in D.1 above shall be established in advance by ordinance. The requestor shall have the opportunity to review and object to the charge prior to it being incurred.

(See N.J.S.A. 47:1A-5(c)).

The custodian may require a deposit against costs for reproducing documents sought through an anonymous request whenever the custodian anticipates that the information thus requested will cost in excess of $5 to reproduce. N.J.S.A. 47:1A-5(f).

No fee shall be charged to a victim of a crime for a copy or copies of a record to which the crime victim is entitled to access, as provided in section 1 of P.L.1995, c. 23 (C.47:1A-1.1). N.J.S.A. 47:1A-5(b)(2).

3. Provisions for fee waivers

No fee shall be charged to a victim of a crime for a copy or copies of a record to which the crime victim is entitled to access, as provided in section 1 of P.L.1995, c. 23 (C.47:1A-1.1). N.J.S.A. 47:1A-5(b)(2).

4. Requirements or prohibitions regarding advance payment

OPRA provides that the custodian may require a deposit against costs for reproducing documents sought through an anonymous request, whenever the custodian anticipates that the information requested will cost in excess of $5 to reproduce. (See, N.J.S.A. 47:1A-f(f)).

5. Have agencies imposed prohibitive fees to discourage requesters?

Fees for copies have been set by statute. Except as otherwise provided by law or regulation, the fee assessed for the duplication of a government record embodied in the form of printed matter shall be $0.05 per letter size page or smaller, and $0.07 per legal size page or larger. If a public agency can demonstrate that its actual costs for duplication of a government record exceed the foregoing rates, the public agency shall be permitted to charge the actual cost of duplicating the record. The actual cost of duplicating the record, upon which all copy fees are based, shall be the cost of materials and supplies used to make a copy of the record, but shall not include the cost of labor or other overhead expenses associated with making the copy except as provided for in subsection c. of this section. Access to electronic records and non-printed materials shall be provided free of charge, but the public agency may charge for the actual costs of any needed supplies such as computer discs.

(See N.J.S.A. 47:1A-5(b)). Under certain circumstances a special service charge may be imposed as follows:

c. Whenever the nature, format, manner of collation, or volume of a government record embodied in the form of printed matter to be inspected, examined, or copied pursuant to this section is such that the record cannot be reproduced by ordinary document copying equipment in ordinary business size or involves an extraordinary expenditure of time and effort to accommodate the request, the public agency may charge, in addition to the actual cost of duplicating the record, a special service charge that shall be reasonable and shall be based upon the actual direct cost of providing the copy or copies; provided, however, that in the case of a municipality, rates for the duplication of particular records when the actual cost of copying exceeds the foregoing rates shall be established in advance by ordinance. The requestor shall have the opportunity to review and object to the charge prior to it being incurred.

6. Fees for electronic records

E. Who enforces the Act?

A person who is denied access to a government record, at the option of the requestor, may institute a proceeding to challenge the custodian's decision by filing an action in Superior Court or file a complaint with the Government Records Council established pursuant to OPRA.

1. Attorney General's role

2. Availability of an ombudsman

The statute does not provide for an ombudsman. However, N.J.S.A. 47:1A-7 establishes a Government Records Council which is charged with, among other things, establishing an informal mediation program to facilitate the resolution of disputes regarding access to government records.

3. Commission or agency enforcement

F. Are there sanctions for noncompliance?

A requestor who prevails in any proceeding shall be entitled to a reasonable attorneys' fee. (See N.J.S.A. 47:1A-6). In addition, a public official, officer, employee or custodian who knowingly and willfully violates OPRA and is found to have unreasonably denied access under the totality of the circumstances, shall be subject to a civil penalty of $1,000 for an initial violation $2,500 for a second violation that occurs within 10 years of the initial violation, and $5,000 for a third violation occurring within 10 years of an initial violation that. Appropriate disciplinary proceedings may be initiated against a public official, officer, employee or custodian against whom a penalty has been imposed.

3. Records retention requirements

4. Provisions for broad, vague, or burdensome requests

II. Exemptions and other legal limitations

A. Exemptions in the open records statute

1. Character of exemptions

OPRA declares that all government records be subject to public access unless exempt from such access by: (i) OPRA, (ii) any other statute, (iii) resolution of either or both houses of the Legislature, (iv) regulation promulgated under the authority of any statute or Executive Order of the Governor; (v) Executive Order of the Governor; (vi) Rules of Court; (vii) any federal law; (viii) federal regulation; or (ix) court order. (See N.J.S.A. 47:1A-1).

OPRA provides, in N.J.S.A. 47:1A-1.1:

A government record shall not include the following information which is deemed to be confidential for the purposes of P.L. 1963, c. 73 (C. 47:1A-1 et seq.) as amended and supplemented:

information received by a member of the Legislature from a constituent or information held by a member of the Legislature concerning a constituent, including but not limited to information in written form or contained in any e-mail or computer data base, or in any telephone record whatsoever, unless it is information the constituent is required by law to transmit;

any memorandum, correspondence, notes, report or other communication prepared by, or for, the specific use of a member of the Legislature in the course of the member's official duties, except that this provision shall not apply to an otherwise publicly-accessible report which is required by law to be submitted to the Legislature or its members;

any copy, reproduction or facsimile of any photograph, negative or print, including instant photographs and videotapes of the body, or any portion of the body, of a deceased person, taken by or for the medical examiner at the scene of death or in the course of a post mortem examination or autopsy made by or caused to be made by the medical examiner except:

when used in a criminal action or proceeding in this State which relates to the death of that person,

for the use as a court of this State permits, by order after good cause has been shown and after written notification of the request for the court order has been served at least five days before the order is made upon the county prosecutor for the county in which the post mortem examination or autopsy occurred,

for use in the field of forensic pathology or for use in medical or scientific education or research, or

for use by any law enforcement agency in this State or any other state or federal law enforcement agency;

criminal investigatory records;

victims' records, except that a victim of a crime shall have access to the victim's own records;

any written request by a crime victim for a record to which the victim is entitled to access as provided in this section, including, but not limited to, any law enforcement agency report, domestic violence offense report, and temporary or permanent restraining order;

personal firearms records, except for use by any person authorized by law to have access to these records or for use by any government agency, including any court or law enforcement agency, for purposes of the administration of justice;

personal identifying information received by the Division of Fish and Wildlife in the Department of Environmental Protection in connection with the issuance of any license authorizing hunting with a firearm. For the purposes of this paragraph, personal identifying information shall include, but not be limited to, identity, name, address, social security number, telephone number, fax number, driver’s license number, email address, or social media address of any applicant or licensee;

trade secrets and proprietary commercial or financial information obtained from any source. For the purposes of this paragraph, trade secrets shall include data processing software obtained by a public body under a licensing agreement which prohibits its disclosure;

any record within the attorney-client privilege. This paragraph shall not be construed as exempting from access attorney or consultant bills or invoices except that such bills or invoices may be redacted to remove any information protected by the attorney-client privilege;

emergency or security information or procedures for any buildings or facility which, if disclosed, would jeopardize security of the building or facility or persons therein;

security measures and surveillance techniques which, if disclosed, would create a risk to the safety of persons, property, electronic data or software;

information which, if disclosed, would give an advantage to competitors or bidders;

information generated by or on behalf of public employers or public employees in connection with any sexual harassment complaint filed with a public employer or with any grievance filed by or against an individual or in connection with collective negotiations, including documents and statements of strategy or negotiating position;

information which is a communication between a public agency and its insurance carrier, administrative service organization or risk management office;

information which is to be kept confidential pursuant to court order;

any copy of form DD-214, or that form, issued by the United States Government, or any other certificate of honorable discharge, or copy thereof, from active service or the reserves of a branch of the Armed Forces of the United States, or from service in the organized militia of the State, that has been filed by an individual with a public agency, except that a veteran or the veteran’s spouse or surviving spouse shall have access to the veteran’s own records;

any copy of an oath of allegiance, oath of office or any affirmation taken upon assuming the duties of any public office, or that oath or affirmation, taken by a current or former officer or employee in any public office or position in this State or in any county or municipality of this State, including members of the Legislative Branch, Executive Branch, Judicial Branch, and all law enforcement entities, except that the full name, title, and oath date of that person contained therein shall not be deemed confidential;

that portion of any document which discloses the social security number, credit card number, unlisted telephone number or driver license number of any person; except for use by any government agency, including any court or law enforcement agency, in carrying out its functions, or any private person or entity acting on behalf thereof, or any private person or entity seeking to enforce payment of court-ordered child support; except with respect to the disclosure of driver information by the New Jersey Motor Vehicle Commission as permitted by section 2 of P.L. 1997, c. 188 (C. 39:2-3.4); and except that a social security number contained in a record required by law to be made, maintained or kept on file by a public agency shall be disclosed when access to the document or disclosure of that information is not otherwise prohibited by State or federal law, regulation or order or by State statute, resolution of either or both houses of the Legislature, Executive Order of the Governor, rule of court or regulation promulgated under the authority of any statute or executive order of the Governor.

A list of persons identifying themselves as being in need of special assistance in the event of an emergency maintained by a municipality for public safety purposes pursuant to section 1 of P.L.2017, c. 266 (C.40:48-2.67); and

A list of persons identifying themselves as being in need of special assistance in the event of an emergency maintained by a county for public safety purposes pursuant to section 6 of P.L.2011, c. 178 (C.App.A:9-43.13).

A government record shall not include, with regard to any public institution of higher education, the following information which is deemed to be privileged and confidential:

pedagogical, scholarly and/or academic research records and/or the specific details of any research project conducted under the auspices of a public higher education institution in New Jersey, including, but not limited to research, development information, testing procedures, or information regarding test participants, related to the development or testing of any pharmaceutical or pharmaceutical delivery system, except that a custodian may not deny inspection of a government record or part thereof that gives the name, title, expenditures, source and amounts of funding and date when the final project summary of any research will be available;

test questions, scoring keys and other examination data pertaining to the administration of an examination for employment or academic examination;

records of pursuit of charitable contributions or records containing the identity of a donor of a gift if the donor requires non-disclosure of the donor's identity as a condition of making the gift provided that the donor has not received any benefits of or from the institution of higher education in connection with such gift other than a request for memorialization or dedication;

valuable or rare collections of books and/or documents obtained by gift, grant, bequest or devise conditioned upon limited public access;

information contained on individual admission applications; and

information concerning student records or grievance or disciplinary proceedings against a student to the extent disclosure would reveal the identity of the student.

Personal information regarding the victim of a crime or the victim's family when the information is being sought by the convict who wronged the victim or by anonymous request. (See N.J.S.A. 47:1A-2.2)

Files maintained by the Office of the Public Defender that relate to the handling of any case. (See N.J.S.A. 47:lA-5.k.)

Records exempt from disclosure under any other statute; resolution of either or both Houses of the Legislature; regulation promulgated under authority of any statute or Executive Order; Executive Order; Rules of Court or; federal law, federal regulation or federal order. (See N.J.S.A. 47:lA-9.a.).

Records heretofore exempt from disclosure pursuant to any executive or legislative privilege or grant of confidentiality established or recognized by State Constitution of this State, statute, court rule or case law. (See N.J.S.A. 47:lA-9.b.)

Personnel and pension records of state and local employees except for the employee's name, title, position, salary, payroll record, length of service, date of termination, reason for termination, amount and type of pension received, and other employee background information which discloses specific experiential, educational or medical qualifications for government employment or for receipt of a public pension, but excluding detailed medical or psychological information (Byrne Executive Order No. 11 (1974));

Executive Orders:

(a) Executive Order No. 9 issued by Governor Richard J. Hughes

(b) Executive Order No. 48 issued by Governor Richard J. Hughes

(c) Executive Order No. 11 issued by Governor Brendan Byrne

(d) Executive Order No. 69 issued by Governor Christine Todd Whitman

(e) Executive Order No. 18 issued by Governor James McGreevey

(f) Executive Order No. 21 issued by Governor James McGreevey

(g) Executive Order No. 26 issued by Governor James McGreevey

(h) Executive Order No. 47 issued by Governor Chris Christie (note that Executive Order 47 provides in part “[a]ny provision of Executive Order No. 21 (2002) and Executive Order No. 26 (2002) that applies to any exemption initially proposed by an agency in the July 1, 2002 a New Jersey Register, is hereby rescinded.)

Regulatory Exemptions

There is discretionary language in N.J.S.A. 47:1A-3. Specifically, where records sought pertain to an investigation in progress, access may be denied if disclosure would "be inimical to the public interest." (See N.J.S.A. 47:1A-3).

That section also provides that “[n]otwithstanding any other provision of this subsection, where it shall appear that the information requested or to be examined will jeopardize the safety of any person or jeopardize any investigation in progress or may be otherwise inappropriate to release, such information may be withheld.” (See N.J.S.A. 47:1A-3)

If a request for access to a government record would substantially disrupt agency operations, the custodian may deny access to the record after attempting to reach a reasonable solution with the requestor that accommodates the interests of the requestor and the agency. N.J.S.A. 47:1A-5(g).

2. Discussion of each exemption

OPRA declares that all government records be subject to public access unless exempt from such access by: (i) OPRA, (ii) any other statute, (iii) resolution of either or both houses of the Legislature, (iv) regulation promulgated under the authority of any statute or Executive Order of the Governor; (v) Executive Order of the Governor; (vi) Rules of Court; (vii) any federal law; (viii) federal regulation; or (ix) court order. (See N.J.S.A. 47:1A-1).

OPRA provides, in N.J.S.A. 47:1A-1.1:

A government record shall not include the following information which is deemed to be confidential for the purposes of P.L. 1963, c. 73 (C. 47:1A-1 et seq.) as amended and supplemented:

information received by a member of the Legislature from a constituent or information held by a member of the Legislature concerning a constituent, including but not limited to information in written form or contained in any e-mail or computer data base, or in any telephone record whatsoever, unless it is information the constituent is required by law to transmit;

any memorandum, correspondence, notes, report or other communication prepared by, or for, the specific use of a member of the Legislature in the course of the member's official duties, except that this provision shall not apply to an otherwise publicly-accessible report which is required by law to be submitted to the Legislature or its members;

any copy, reproduction or facsimile of any photograph, negative or print, including instant photographs and videotapes of the body, or any portion of the body, of a deceased person, taken by or for the medical examiner at the scene of death or in the course of a post mortem examination or autopsy made by or caused to be made by the medical examiner except:

when used in a criminal action or proceeding in this State which relates to the death of that person,

for the use as a court of this State permits, by order after good cause has been shown and after written notification of the request for the court order has been served at least five days before the order is made upon the county prosecutor for the county in which the post mortem examination or autopsy occurred,

for use in the field of forensic pathology or for use in medical or scientific education or research, or

for use by any law enforcement agency in this State or any other state or federal law enforcement agency;

criminal investigatory records;

victims' records, except that a victim of a crime shall have access to the victim's own records;

any written request by a crime victim for a record to which the victim is entitled to access as provided in this section, including, but not limited to, any law enforcement agency report, domestic violence offense report, and temporary or permanent restraining order;

personal firearms records, except for use by any person authorized by law to have access to these records or for use by any government agency, including any court or law enforcement agency, for purposes of the administration of justice;

personal identifying information received by the Division of Fish and Wildlife in the Department of Environmental Protection in connection with the issuance of any license authorizing hunting with a firearm. For the purposes of this paragraph, personal identifying information shall include, but not be limited to, identity, name, address, social security number, telephone number, fax number, driver’s license number, email address, or social media address of any applicant or licensee;

trade secrets and proprietary commercial or financial information obtained from any source. For the purposes of this paragraph, trade secrets shall include data processing software obtained by a public body under a licensing agreement which prohibits its disclosure;

any record within the attorney-client privilege. This paragraph shall not be construed as exempting from access attorney or consultant bills or invoices except that such bills or invoices may be redacted to remove any information protected by the attorney-client privilege;

emergency or security information or procedures for any buildings or facility which, if disclosed, would jeopardize security of the building or facility or persons therein;

security measures and surveillance techniques which, if disclosed, would create a risk to the safety of persons, property, electronic data or software;

information which, if disclosed, would give an advantage to competitors or bidders;

information generated by or on behalf of public employers or public employees in connection with any sexual harassment complaint filed with a public employer or with any grievance filed by or against an individual or in connection with collective negotiations, including documents and statements of strategy or negotiating position;

information which is a communication between a public agency and its insurance carrier, administrative service organization or risk management office;

information which is to be kept confidential pursuant to court order;

any copy of form DD-214, or that form, issued by the United States Government, or any other certificate of honorable discharge, or copy thereof, from active service or the reserves of a branch of the Armed Forces of the United States, or from service in the organized militia of the State, that has been filed by an individual with a public agency, except that a veteran or the veteran’s spouse or surviving spouse shall have access to the veteran’s own records;

any copy of an oath of allegiance, oath of office or any affirmation taken upon assuming the duties of any public office, or that oath or affirmation, taken by a current or former officer or employee in any public office or position in this State or in any county or municipality of this State, including members of the Legislative Branch, Executive Branch, Judicial Branch, and all law enforcement entities, except that the full name, title, and oath date of that person contained therein shall not be deemed confidential;

that portion of any document which discloses the social security number, credit card number, unlisted telephone number or driver license number of any person; except for use by any government agency, including any court or law enforcement agency, in carrying out its functions, or any private person or entity acting on behalf thereof, or any private person or entity seeking to enforce payment of court-ordered child support; except with respect to the disclosure of driver information by the New Jersey Motor Vehicle Commission as permitted by section 2 of P.L. 1997, c. 188 (C. 39:2-3.4); and except that a social security number contained in a record required by law to be made, maintained or kept on file by a public agency shall be disclosed when access to the document or disclosure of that information is not otherwise prohibited by State or federal law, regulation or order or by State statute, resolution of either or both houses of the Legislature, Executive Order of the Governor, rule of court or regulation promulgated under the authority of any statute or executive order of the Governor.

A list of persons identifying themselves as being in need of special assistance in the event of an emergency maintained by a municipality for public safety purposes pursuant to section 1 of P.L.2017, c. 266 (C.40:48-2.67); and

A list of persons identifying themselves as being in need of special assistance in the event of an emergency maintained by a county for public safety purposes pursuant to section 6 of P.L.2011, c. 178 (C.App.A:9-43.13).

A government record shall not include, with regard to any public institution of higher education, the following information which is deemed to be privileged and confidential:

pedagogical, scholarly and/or academic research records and/or the specific details of any research project conducted under the auspices of a public higher education institution in New Jersey, including, but not limited to research, development information, testing procedures, or information regarding test participants, related to the development or testing of any pharmaceutical or pharmaceutical delivery system, except that a custodian may not deny inspection of a government record or part thereof that gives the name, title, expenditures, source and amounts of funding and date when the final project summary of any research will be available;

test questions, scoring keys and other examination data pertaining to the administration of an examination for employment or academic examination;

records of pursuit of charitable contributions or records containing the identity of a donor of a gift if the donor requires non-disclosure of the donor's identity as a condition of making the gift provided that the donor has not received any benefits of or from the institution of higher education in connection with such gift other than a request for memorialization or dedication;

valuable or rare collections of books and/or documents obtained by gift, grant, bequest or devise conditioned upon limited public access;

information contained on individual admission applications; and

information concerning student records or grievance or disciplinary proceedings against a student to the extent disclosure would reveal the identity of the student.

Personal information regarding the victim of a crime or the victim's family when the information is being sought by the convict who wronged the victim or by anonymous request. (See N.J.S.A. 47:1A-2.2)

Files maintained by the Office of the Public Defender that relate to the handling of any case. (See N.J.S.A. 47:lA-5.k.)

Records exempt from disclosure under any other statute; resolution of either or both Houses of the Legislature; regulation promulgated under authority of any statute or Executive Order; Executive Order; Rules of Court or; federal law, federal regulation or federal order. (See N.J.S.A. 47:lA-9.a.).

Records heretofore exempt from disclosure pursuant to any executive or legislative privilege or grant of confidentiality established or recognized by State Constitution of this State, statute, court rule or case law. (See N.J.S.A. 47:lA-9.b.)

Personnel and pension records of state and local employees except for the employee's name, title, position, salary, payroll record, length of service, date of termination, reason for termination, amount and type of pension received, and other employee background information which discloses specific experiential, educational or medical qualifications for government employment or for receipt of a public pension, but excluding detailed medical or psychological information (Byrne Executive Order No. 11 (1974));

Executive Orders:

(a) Executive Order No. 9 issued by Governor Richard J. Hughes

(b) Executive Order No. 48 issued by Governor Richard J. Hughes

(c) Executive Order No. 11 issued by Governor Brendan Byrne

(d) Executive Order No. 69 issued by Governor Christine Todd Whitman

(e) Executive Order No. 18 issued by Governor James McGreevey

(f) Executive Order No. 21 issued by Governor James McGreevey

(g) Executive Order No. 26 issued by Governor James McGreevey

(h) Executive Order No. 47 issued by Governor Chris Christie (note that Executive Order 47 provides in part “[a]ny provision of Executive Order No. 21 (2002) and Executive Order No. 26 (2002) that applies to any exemption initially proposed by an agency in the July 1, 2002 a New Jersey Register, is hereby rescinded.)

Regulatory Exemptions

There is discretionary language in N.J.S.A. 47:1A-3. Specifically, where records sought pertain to an investigation in progress, access may be denied if disclosure would "be inimical to the public interest." (See N.J.S.A. 47:1A-3).

That section also provides that “[n]otwithstanding any other provision of this subsection, where it shall appear that the information requested or to be examined will jeopardize the safety of any person or jeopardize any investigation in progress or may be otherwise inappropriate to release, such information may be withheld.” (See N.J.S.A. 47:1A-3)

If a request for access to a government record would substantially disrupt agency operations, the custodian may deny access to the record after attempting to reach a reasonable solution with the requestor that accommodates the interests of the requestor and the agency. N.J.S.A. 47:1A-5(g).

B. Other statutory exclusions

In Asbury Park Press v. Ocean County, 374 N.J. Super. 312, (Law Div. 2004), The Law Division held that an OPRA request for a 911 tape and transcript relating to a double homicide were properly denied. The court concluded that the Legislature intended to provide protection against disclosure in those instances in which a person had a reasonable expectation of privacy. The court's decision appeared to be based on the level of distress of the caller who died at the hand of his son.

C. Court-derived exclusions, common law prohibitions, recognized privileges against disclosure

N.J.S.A. 47:1A-9(a) provides that “[t]he provisions of this act, P.L.2001, c.404 (C.47:1A-5 et al.), shall not abrogate any exemption of a public record or government record from public access heretofore made pursuant to P.L.1963, c.73 (C.47:1A-1 et seq.); any other statute; resolution of either or both Houses of the Legislature; regulation promulgated under the authority of any statute or Executive Order of the Governor; Executive Order of the Governor; Rules of Court; any federal law; federal regulation; or federal order.”

D. Protective orders and government agreements to keep records confidential

E. Interaction between federal and state law

1. HIPAA

2. DPPA

3. FERPA

4. Other

F. Segregability requirements

G. Agency obligation to identify basis of redaction or withholding

III. Record categories - open or closed

A. Autopsy and coroners reports

Generally, cause-of-death information is confidential. See N.J.A.C. 8:2A-1.2. Pursuant to N.J.S.A. 47:1A-1.1 any copy, reproduction or facsimile of any photograph, negative or print, including instant photograph and videotapes of the body, or any portion of the body, of a deceased person, taken by or for the medical examiner at the scene of death or in the course of a post mortem examination or autopsy made by or caused to be made by the medical examiner is specifically exempted from the definition of government record. New Jersey courts have permitted public access to autopsy reports and cause-of-death information on death certificates in limited circumstances under the common law. SeeShuttleworth v. City of Camden, 258 N.J. Super. 573, 610 A.2d 985 (App. Div. 1992): Home News v. New Jersey Dept. of Health, 144 N.J. 446, 677 A.2d 195 (1996).

N.J.S.A. 47:1A-3(a) provides that where it appears that the requested record(s) pertain to an investigation in progress by any public agency, the right of access may be denied if access to such record(s) shall be inimical to the public interest. This provision shall not be construed to allow any public agency to prohibit access to a record of that agency that was open for public inspection, examination, or copying before the investigation commenced. Whenever a public agency, during the course of an investigation, obtains from another public agency a government record that was open for public inspection, examination or copying before the investigation commenced, the investigating agency shall provide the other agency with sufficient access to the record to allow the other agency to comply with OPRA requests.

N.J.S.A. 47:1A-1.1 provides that “criminal investigatory records” are exempt from access, regardless of whether the investigation is open or closed. A “criminal investigatory record is defined as a record that is not required by law to be made, maintained or kept on file that is held by a law enforcement agency which pertains to any criminal investigation or related civil enforcement proceeding.

N.J.S.A. 47:1A-3(a) only refers to investigations in progress.

N.J.S.A. 47:1A-1.1 provides that “criminal investigatory records” are exempt from access, regardless of whether the investigation is open or closed. A “criminal investigatory record is defined as a record that is not required by law to be made, maintained or kept on file that is held by a law enforcement agency which pertains to any criminal investigation or related civil enforcement proceeding.

C. Bank records

Semi-annual reports of a state-chartered bank are public records. N.J.S.A. 17:9A-256. Special reports of state-chartered banks required to be filed by the Commissioner of Banking are not. N.J.S.A. 17:9A-264. Annual reports and audits of state-chartered savings and loans are public records. N.J.S.A. 17:12B-171. Reports of examinations of savings and loans by the Commissioner are confidential. N.J.S.A. 17:12B-172. Annual reports of the condition of state-chartered credit unions are public records. N.J.S.A. 17:13-111. SeeTwiss v. State of New Jersey Dept. of Treasury, 124 N.J. 461, 591 A.2d 913 (1991) (information regarding bank accounts which escheat to the state is confidential).

Home News v. Board of Educ. of Borough of Spotswood, 286 N.J. Super. 380 (App. Div. 1996) involved a request for copies of the proposed school district budget and supporting documentation. The Court held that under the Right To Know Law, which preceded OPRA and defined a public record as one that is required by law to be made, maintained, or kept on file by a public body, the draft budget was not a government record, as there was no requirement that it be made, maintained or kept on file.

OPRA amended the definition of “government record” by deleting the reference to records that are “required” to be made, maintained or kept on file. Therefore, under OPRA, draft budgets, as well as, final budgets are “government records.” However, the governing body may assert that portions of the draft budgets should be redacted, if they fall under the “advisory, consultative and deliberative” exemption from access provided for in N.J.S.A. 47:1A-1.

F. Contracts, proposals and bids

N.J.S.A. 47:1A-1.1 exempts from the definition of government record information that, if disclosed, would give an advantage to competitors or bidders. All advertisements for bids, and bids when opened and all contracts for the purchase of goods or services are public records. N.J.S.A. 47:1A-11-4, 14 and 23.

G. Collective bargaining records

All final collective bargaining contracts with public employees are public records. N.J.S.A. 34:13A-8.2. The records of a mediator or arbitrator in a public employee labor dispute may be kept confidential. N.J.S.A. 34:13A-16.

H. Economic development records

There is no specific statute or case decision dealing with these records. If they meet the definition of “Government Record” in OPRA then they are accessible. To the extent they contain any trade secrets, proprietary commercial or financial information, that information can be redacted, pursuant to N.J.S.A. 47:1A-1, prior to the production of the records.

I. Election Records

N.J.S.A. 19:31-3.2 provides: a. A person who is (1) a victim of domestic violence who has obtained a permanent restraining order against a defendant pursuant to section 13 of the "Prevention of Domestic Violence Act of 1991," P.L. 1991, c. 261 (C. 2C:25-29) and fears further violent acts by the defendant, or (2) a victim of stalking, or member of the immediate family of such a victim as defined by paragraph (3) of subsection a. of section 1 of P.L. 1992, c. 209 (C. 2C:12-10), who is protected under the terms of a permanent restraining order issued pursuant to section 3 of P.L. 1996, c. 39 (C. 2C:12-10.1) and who fears death or bodily injury from the defendant against whom that order was issued, shall be allowed to register to vote without disclosing the person's street address. Such a person shall leave the space for a street address on the original permanent registration form blank and shall, instead, attach to the form a copy of the permanent restraining order and a note which indicates that the person fears future violent acts by the defendant and which contains a mailing address, post office box or other contact point where mail can be received by the person. Upon receipt of the person's voter registration form, the commissioner of registration in all counties having a superintendent of elections, and the county board of elections in all other counties, shall provide the person with a map of the municipality in which the person resides which shows the various voting districts. The person shall indicate to the commissioner or board, as appropriate, the voting district in which the person resides and shall be permitted to vote at the polling place for that district. If such a person thereafter changes residences, the person shall so inform the commissioner or board by completing a new permanent registration form in the manner described above.

Any person who makes public any information which has been provided by a victim of domestic violence, or by a victim of stalking or the family member of such a victim, pursuant to subsection a. of this section concerning the mailing address, post office box or other contact point of the victim or family member or the election district in which the victim or family member resides is guilty of a crime of the fourth degree.

N.J.S.A. 19:31-6.4(d) provides that “the commissioner of registration shall furnish such registration forms upon request in person to any person or organization in such reasonable quantities as such person or organization shall request. The commissioner shall furnish no fewer than two such forms to any person upon request by mail or by telephone.”

N.J.S.A. 19:31-10 provides:

The original and duplicate registration forms when filled out shall be filed alphabetically by districts at the office of the commissioner in separate sets of locked binders, one for the permanent office record and the other for use in the polling places on election days. Each set of the locked binders of original and duplicate registration forms shall consist of two volumes for each election district to be known as volume I and volume II. Volume I shall contain an index alphabetically arranged beginning with the letter "A" and ending with the letter "K", and volume II shall contain a similar index beginning with the letter "L" and ending with the letter "Z". In filing the forms there shall be inserted after the original and duplicate registration forms of each registrant a record of voting form with the corresponding serial number and the name and address of the registrant thereon. The binders containing the duplicate registration forms and the corresponding record of voting forms shall constitute and be known as the signature copy registers.

The original registration forms shall not be open to public inspection except during such period as the duplicate registration forms are in process of delivery to or from the district boards or in the possession of such district boards. The original registration forms shall not be removed from the office of the commissioner except upon the order of a court of competent jurisdiction. The signature copy registers shall at all times, except during the time as above provided and subject to reasonable rules and regulations be open to public inspection.

N.J.S.A 19:31-18.1 provides:

The county clerk in all counties shall cause copies of the registry lists, certified and transmitted under R.S.19:31-18, to be printed, and shall furnish to any voter applying for the same such copies, charging therefore $ 0.25 per copy of the list of voters of each election district. The clerk shall also furnish five printed copies thereof to each district board, which shall within two days post two such registry lists, one in the polling place and one in another conspicuous place within the election district. The county clerk shall also forthwith deliver to the superintendent of elections of the county, if any there be, and to the chairmen of the county committees of each of the several political parties in the county, five copies of the lists of voters of each election district in the county; and to the municipal clerk of each of the municipalities in the county five copies of the lists of voters of each election district in such municipality; and to the county board 10 copies of the lists of voters of each election district in each of such municipalities. The county clerk shall also, upon the request of the chairman of the State committee of any of the several political parties, but not more than once in each calendar year, forthwith deliver a copy of the lists of voters of each election district in each of the municipalities in his county. In no case shall a list of registered voters furnished pursuant to this section include voter signatures. The county clerk shall satisfy the request by delivery of a computer-generated or electronic copy of the list for the county from the Statewide voter registration system.

The commissioner of registration shall furnish a computer-generated or electronic copy of a list of registered voters in any or all election districts in the county to any voter requesting it, for which copy such commissioner shall make a charge which shall be uniform in any calendar year and which shall reflect only the cost of reproducing the list, but which in any case shall not exceed $ 375.

No person shall use voter registration lists or copies thereof prepared pursuant to this section as a basis for commercial or charitable solicitation of the voters listed thereon. Any person making such use of such lists or copies thereof shall be a disorderly person, and shall be punished by a fine not exceeding $ 500.00.

N.J.S.A. 19:31-23 provides:

Following each election the commissioner shall cause the record of voting as shown on the record of voting forms in the signature copy registers or, in counties in which polling records are used in place of those signature copy registers pursuant to section 2 of P.L.1994, c.170 (C.19:31-3.3), as shown in the polling records, to be entered on the record of voting forms in the original registration binders and the Statewide voter registration system. An entry of any record of voting which shall have been made in the system shall be retained for a period of not less than ten years following the election at which the vote so recorded was cast.

J. Emergency Medical Services records

HIPPA prevents disclosure of certain medical information. To the extent any information in these records is exempted from disclosure by HIPPA, it is likewise exempted from the definition of “government record” under OPRA.

See also, N.J.S.A. 47:1A-1.1:

A government record shall not include the following information which is deemed to be confidential for the purposes of P.L.1963, c. 73 (C.47:1A-1 et seq.) as amended and supplemented:

…

any copy, reproduction or facsimile of any photograph, negative or print, including instant photographs and videotapes of the body, or any portion of the body, of a deceased person, taken by or for the medical examiner at the scene of death or in the course of a post mortem examination or autopsy made by or caused to be made by the medical examiner except:

when used in a criminal action or proceeding in this State which relates to the death of that person,

for the use as a court of this State permits, by order after good cause has been shown and after written notification of the request for the court order has been served at least five days before the order is made upon the county prosecutor for the county in which the post mortem examination or autopsy occurred,

for use in the field of forensic pathology or for use in medical or scientific education or research, or

for use by any law enforcement agency in this State or any other state or federal law enforcement agency;

With respect to accident reports, N.J.S.A. 39:4-131 provides, in relevant part, that accident reports required to be forwarded by law enforcement officers and the information contained therein shall not be privileged or held confidential. Every citizen of this State shall have the right, during regular business hours and under supervision, to inspect and copy such reports and shall also have the right in person to purchase copies of the reports at the same fee established by section 6 of P.L.2001, c.404 (C.47:1A-5). If copies of reports are requested other than in person, an additional fee of up to $ 5.00 may be added to cover the administrative costs of the report. Upon request, a police department shall send an accident report to a person through the mail or via fax as defined in section 2 of P.L.1976, c.23 (C.19:59-2). The police department may require the person requesting the report to provide a completed request form and the appropriate fee prior to faxing or mailing the report. The police department shall provide the person requesting the report with the option of submitting the form and providing the appropriate fee either in person, through the mail, or via fax as defined in section 2 of P.L.1976, c.23 (C.19:59-2).

The provisions of any other law or regulation to the contrary notwithstanding, reports obtained pursuant to this act shall not be subject to confidentiality requirements except as provided by section 28 of P.L.1960, c.52 (C.2A:84A-28).

When a motor vehicle accident results in the death or incapacitation of the driver or any passenger, the law enforcement officer responsible for notifying the next of kin that their relative is deceased or incapacitated, also shall inform the relative, in writing, how to obtain a copy of the accident report required by this section and the name, address, and telephone number of the person storing the motor vehicle pursuant to section 1 of P.L.1964, c.81 (C.39:10A-1).

Pursuant to N.J.S.A. 47:1A-1.1, victims’ records are not government records, except that a victim of a crime shall have access to the victim’s own records.

"Victim's record" means an individually-identifiable file or document held by a victims' rights agency which pertains directly to a victim of a crime except that a victim of a crime shall have access to the victim's own records.
"Victim of a crime" means a person who has suffered personal or psychological injury or death or incurs loss of or injury to personal or real property as a result of a crime, or if such a person is deceased or incapacitated, a member of that person's immediate family.

“Victims’ rights agency” means a public agency, or part thereof, the primary responsibility of which is providing services, including but not limited to food, shelter, or clothing, medical, psychiatric, psychological or legal services or referrals, information and referral services, counseling and support services, or financial services to victims of crimes, including victims of sexual assault, domestic violence, violent crime, child endangerment, child abuse or child neglect, and the Victims of Crime Compensation Board, established pursuant to P.L.1971, c. 317 (C.52:4B-1 et seq.) and continued as the Victims of Crime Compensation Office pursuant to P.L.2007, c. 95 (C.52:4B-3.2 et al.) and Reorganization Plan No. 001-2008.

Moreover, N.J.S.A. 47:1A-2.2:

Notwithstanding the provisions of P.L.1963, c. 73 (C.47:1A-1 et seq.) or the provisions of any other law to the contrary, where it shall appear that a person who is convicted of any indictable offense under the laws of this State, any other state or the United States is seeking government records containing personal information pertaining to the person’s victim or the victim’s family, including but not limited to a victim’s home address, home telephone number, work or school address, work telephone number, social security account number, medical history or any other identifying information, the right of access provided for in P.L.1963, c. 73 (C.47:1A-1 et seq.) as amended and supplemented shall be denied.

A government record containing personal identifying information which is protected under the provisions of this section may be released only if the information is necessary to assist in the defense of the requestor. A determination that the information is necessary to assist in the requestor’s defense shall be made by the court upon motion by the requestor or his representative.

Notwithstanding the provisions of P.L.1963, c. 73 (C.47:1A-1 et seq.) as amended and supplemented, or any other law to the contrary, a custodian shall not comply with an anonymous request for a government record which is protected under the provisions of this section.

N.J.A.C. 10A:22-2.1 provides:

(a) Pursuant to N.J.S.A. 47:1A-2.2 , a person convicted of any indictable offense under the laws of this State, any other state or the United States shall be denied access to a government record if the record contains personal information pertaining to the person's victim(s) or family member(s) of a victim(s).

(b) An exception to (a) above may be made only if a court, upon motion by the requester or his or her representative, has determined that the information is necessary to assist in the defense of the requester. The inmate or representative thereof shall submit the determination by the court to the custodian of records for review and release authorization determination.

Additionally, N.J.S.A. 47:1A-1.1 exempts from access:

“emergency or security information or procedures for any buildings or facility which, if disclosed, would jeopardize security of the building or facility or persons therein;” and “security measures and surveillance techniques which, if disclosed, would create a risk to the safety of persons, property, electronic data or software.”

See also, Gilleran v. Township of Bloomfield 227 N.J. 159 (2016) - Supreme Court of New Jersey determined that security camera footage of municipal parking lot was exempt from access under OPRA due to the two security exemptions in OPRA.

K. Gun permits

N.J.A.C. 13:54-1.15 provides:

Any background investigation conducted by the chief of police, the Superintendent or the county prosecutor, of any applicant for a permit, firearms identification card license, or registration, in accordance with the requirements of this chapter, is not a public record and shall not be disclosed to any person not authorized by law or this chapter to have access to such investigation, including the applicant. Any application for a permit, firearms identification card, or license, and any document reflecting the issuance or denial of such permit, firearms identification card, or license, and any permit, firearms identification card, license, certification, certificate, form of register, or registration statement, maintained by any State or municipal governmental agency, is not a public record and shall not be disclosed to any person not authorized by law or this chapter to have access to such documentation, including the applicant, except on the request of persons acting in their governmental capacities for purposes of the administration of justice.

N.J.S.A. 47:1A-1.1 provides:

A government record shall not include the following information which is deemed to be confidential for the purposes of P.L.1963, c. 73 (C.47:1A-1 et seq.) as amended and supplemented:

…

personal firearms records, except for use by any person authorized by law to have access to these records or for use by any government agency, including any court or law enforcement agency, for purposes of the administration of justice;

“Personal firearms record” means any information contained in a background investigation conducted by the chief of police, the county prosecutor, or the Superintendent of State Police, of any applicant for a permit to purchase a handgun, firearms identification card license, or firearms registration; any application for a permit to purchase a handgun, firearms identification card license, or firearms registration; any document reflecting the issuance or denial of a permit to purchase a handgun, firearms identification card license, or firearms registration; and any permit to purchase a handgun, firearms identification card license, or any firearms license, certification, certificate, form of register, or registration statement. For the purposes of this paragraph, information contained in a background investigation shall include, but not be limited to, identity, name, address, social security number, phone number, fax number, driver’s license number, email address, social media address of any applicant, licensee, registrant or permit holder.

See also N.J.S.A. 47:1A-1.3, which provides:

Notwithstanding the provisions of any other statute or regulation to the contrary, government record as defined in section 1 of P.L.1995, c. 23 (C.47:1A-1.1) shall include aggregate information regarding the total number of permits to purchase a handgun and firearms purchaser identification cards, without any personal identifying information, that have been issued by the Superintendent of State Police or the Chief of Police of a municipal police department.

L. Homeland security and anti-terrorism measures

N.J.S.A. 47:1A-1.1 exempts from access:

“emergency or security information or procedures for any buildings or facility which, if disclosed, would jeopardize security of the building or facility or persons therein;” and “security measures and surveillance techniques which, if disclosed, would create a risk to the safety of persons, property, electronic data or software.”

See also, Gilleran v. Township of Bloomfield 227 N.J. 159 (2016) - Supreme Court of New Jersey determined that security camera footage of municipal parking lot was exempt from access under OPRA due to the two security exemptions in OPRA.

M. Hospital reports

Any reports which include individual patient information generally are confidential. Moreover, HIPPA prevents disclosure of certain medical information. To the extent any information in these records is exempted from disclosure by HIPPA, it is likewise exempted from the definition of “government record” under OPRA.

3. Applications

4. Personally identifying information

5. Expense reports

6. Evaluations/performance reviews

7. Complaints filed against employees

8. Other

O. Police records

1. Accident reports

A government record shall not include the following information which is deemed to be confidential for the purposes of P.L.1963, c. 73 (C.47:1A-1 et seq.) as amended and supplemented:

…

any copy, reproduction or facsimile of any photograph, negative or print, including instant photographs and videotapes of the body, or any portion of the body, of a deceased person, taken by or for the medical examiner at the scene of death or in the course of a post mortem examination or autopsy made by or caused to be made by the medical examiner except:

when used in a criminal action or proceeding in this State which relates to the death of that person,

for the use as a court of this State permits, by order after good cause has been shown and after written notification of the request for the court order has been served at least five days before the order is made upon the county prosecutor for the county in which the post mortem examination or autopsy occurred,

for use in the field of forensic pathology or for use in medical or scientific education or research, or

for use by any law enforcement agency in this State or any other state or federal law enforcement agency;

N.J.S.A. 39:4-131 provides, in relevant part, that accident reports required to be forwarded by law enforcement officers and the information contained therein shall not be privileged or held confidential. Every citizen of this State shall have the right, during regular business hours and under supervision, to inspect and copy such reports and shall also have the right in person to purchase copies of the reports at the same fee established by section 6 of P.L.2001, c.404 (C.47:1A-5). If copies of reports are requested other than in person, an additional fee of up to $ 5.00 may be added to cover the administrative costs of the report. Upon request, a police department shall send an accident report to a person through the mail or via fax as defined in section 2 of P.L.1976, c.23 (C.19:59-2). The police department may require the person requesting the report to provide a completed request form and the appropriate fee prior to faxing or mailing the report. The police department shall provide the person requesting the report with the option of submitting the form and providing the appropriate fee either in person, through the mail, or via fax as defined in section 2 of P.L.1976, c.23 (C.19:59-2).

The provisions of any other law or regulation to the contrary notwithstanding, reports obtained pursuant to this act shall not be subject to confidentiality requirements except as provided by section 28 of P.L.1960, c.52 (C.2A:84A-28).

When a motor vehicle accident results in the death or incapacitation of the driver or any passenger, the law enforcement officer responsible for notifying the next of kin that their relative is deceased or incapacitated, also shall inform the relative, in writing, how to obtain a copy of the accident report required by this section and the name, address, and telephone number of the person storing the motor vehicle pursuant to section 1 of P.L.1964, c.81 (C.39:10A-1).

2. Police blotter

Police incident logs constitute “Government records” under OPRA and are not exempt as criminal investigatory records because there is no criminal investigation at the time a call is made and recorded in the incident log.

3. 911 tapes

911 tapes fall within the definition of a "government record" under OPRA. Because 911 tapes are required by law to be made and kept, they do not qualify as a criminal investigatory record under OPRA. 911 tapes do not become cloaked with confidentiality simply because they become part of a criminal investigation. Serrano v. South Brunswick, 358 N.J. Super. 352 (App. Div. 2003). They are subject to the analysis set forth in N.J.S.A. 47:1A-3(a).

In Asbury Park Press v. Ocean County Prosecutor’s Office, 374 N.J. Super. 312 (Law Div 2004), the court concluded that the pain family members of the victim who called 911 would suffer upon the release of the call required that it be confidential. Even a redacted version of a transcript, deleting the victim's side of the conversation, would have impermissibly violated the expectation of privacy, because much of what the dispatcher said simply repeated, to obtain confirmation, what the victim had previously said.

4. Investigatory records

N.J.S.A. 47:1A-1.1 defines "Criminal Investigatory Record" as “a record which is not required by law to be made, maintained or kept on file that is held by a law enforcement agency which pertains to any criminal investigation or related civil enforcement proceeding.” N.J.S.A. 47:1A-1.1 also states that “Criminal Investigatory Records” are not “Government Records.”

North Jersey Media Group Inc. v. Township of Lyndhurst, et als., 229 N.J. 541 (2017)- Where police fatally shot a man after a car chase, a media organization was entitled to disclosure of unredacted use of force reports under the Open Public Records Act (OPRA) because under the use of force policy established by the Attorney General, which had the force of law for police officers, the officers were required to make and maintain use of force reports and, accordingly, OPRA's “criminal investigatory record” exception to disclosure did not apply. The Court, however, held that the dash-cam videos at issue did fall within the criminal investigatory records exemption. The basis for the Court’s decision was that it was unaware of any Attorney General directive relating to the use of dash-cams. Additionally, it found that the dash-cam videos pertained to an investigation into actual or potential violations of criminal law – thus satisfying the second requirement of the criminal investigatory records exemption. The Court noted that it was unaware of whether the officers in this case acted pursuant to any local directives and that the “intriguing issue” of whether a local directive carries the force and effect of law would be addressed in Paff v. Ocean Cty. Prosecutor’s Office, in which the Court has granted Certification.

Paff v. Ocean County Prosecutor's Office, 446 N.J. Super. 163 (App.Div. 2016) - Dash cam films made by motor vehicle recorders (MVRs) in police vehicles, which, in accordance with the police chief's written policy order, are generated automatically whenever the vehicle's overhead lights are activated, were held to be government records subject to disclosure under the Open Public Records Act, N.J.S.A. §§ 47:1A-1 to 47:1A-13. Note: Certification of Paff v. Ocean County Prosecutor's Office was granted by the NJ Supreme Court-awaiting decision.

N.J.S.A. 47:1A-3(a) provides:

Notwithstanding the provisions of P.L.1963, c. 73 (C.47:1A-1 et seq.) as amended and supplemented, where it shall appear that the record or records which are sought to be inspected, copied, or examined shall pertain to an investigation in progress by any public agency, the right of access provided for in P.L.1963, c. 73 (C.47:1A-1 et seq.) as amended and supplemented may be denied if the inspection, copying or examination of such record or records shall be inimical to the public interest; provided, however, that this provision shall not be construed to allow any public agency to prohibit access to a record of that agency that was open for public inspection, examination, or copying before the investigation commenced. Whenever a public agency, during the course of an investigation, obtains from another public agency a government record that was open for public inspection, examination or copying before the investigation commenced, the investigating agency shall provide the other agency with sufficient access to the record to allow the other agency to comply with requests made pursuant to P.L.1963, c. 73 (C.47:1A-1 et seq.).

North Jersey Media Group Inc. v. Township of Lyndhurst, et als., 229 N.J. 541 (2017)- The Court held that investigative reports and witness statements, like the ones requested in this case, ordinarily contain factual details and narrative descriptions of the event. As a result, the danger to an ongoing investigation would typically weigh against disclosure of such records while the investigation is under way, particularly in its early stages. Thus, the Court found that while it may be appropriate to deny a request for investigative reports under Section 3(a) early in an investigation – as in this case – the outcome might be different later in the process.

N.J.S.A. 47:1A-3(b) provides:

Notwithstanding the provisions of P.L.1963, c. 73 (C.47:1A-1 et seq.), as amended and supplemented, the following information concerning a criminal investigation shall be available to the public within 24 hours or as soon as practicable, of a request for such information:

where a crime has been reported but no arrest yet made, information as to the type of crime, time, location and type of weapon, if any;

if an arrest has been made, information as to the name, address and age of any victims unless there has not been sufficient opportunity for notification of next of kin of any victims of injury and/or death to any such victim or where the release of the names of any victim would be contrary to existing law or court rule. In deciding on the release of information as to the identity of a victim, the safety of the victim and the victim’s family, and the integrity of any ongoing investigation, shall be considered;

if an arrest has been made, information as to the defendant’s name, age, residence, occupation, marital status and similar background information and, the identity of the complaining party unless the release of such information is contrary to existing law or court rule;

information as to the text of any charges such as the complaint, accusation and indictment unless sealed by the court or unless the release of such information is contrary to existing law or court rule;

information as to the identity of the investigating and arresting personnel and agency and the length of the investigation;

information of the circumstances immediately surrounding the arrest, including but not limited to the time and place of the arrest, resistance, if any, pursuit, possession and nature and use of weapons and ammunition by the suspect and by the police; and

information as to circumstances surrounding bail, whether it was posted and the amount thereof.

Notwithstanding any other provision of this subsection, where it shall appear that the information requested or to be examined will jeopardize the safety of any person or jeopardize any investigation in progress or may be otherwise inappropriate to release, such information may be withheld. This exception shall be narrowly construed to prevent disclosure of information that would be harmful to a bona fide law enforcement purpose or the public safety. Whenever a law enforcement official determines that it is necessary to withhold information, the official shall issue a brief statement explaining the decision.

Although criminal investigatory records are exempt under OPRA, closed criminal investigatory records may be accessible under the common law right to know. There the court will engage in the common law balancing, weighing the interest in access against the interest in confidentiality. Because the investigation is closed the interest in confidentiality is diminished, increasing the chances that the court will find in favor of access. See,Shuttleworth v. City of Camden, 258 N.J. Super. 573(App. Div. 1992).

North Jersey Media Group Inc. v. Township of Lyndhurst, et als., 229 N.J. 541 (2017)-in conducting the common law balancing of the competing interests in disclosure and confidentiality, the Court looked at the level of detail contained in the materials requested. It held that the interest in the integrity of investigations, asserted by the Attorney General in that case, is the strongest when it comes to the disclosure of investigative reports, witness statements and other comparably detailed documents. The Court found that in those areas, the State’s interest in confidentiality outweighs that of the requestor. The Court held that with respect to the dash-cam videos, which do not contain narrative summaries, the interest in disclosure outweighs the generic safety concerns raised by the State. Thus, notwithstanding the fact that the Court determined that the dash-cam videos fall within OPRA’s criminal investigatory records exemption, the Court held that disclosure of the dash-cam videos was nonetheless required under the common law.

5. Arrest records

N.J.S.A. 47:1A-3(b) provides:

Notwithstanding the provisions of P.L.1963, c. 73 (C.47:1A-1 et seq.), as amended and supplemented, the following information concerning a criminal investigation shall be available to the public within 24 hours or as soon as practicable, of a request for such information:

where a crime has been reported but no arrest yet made, information as to the type of crime, time, location and type of weapon, if any;

if an arrest has been made, information as to the name, address and age of any victims unless there has not been sufficient opportunity for notification of next of kin of any victims of injury and/or death to any such victim or where the release of the names of any victim would be contrary to existing law or court rule. In deciding on the release of information as to the identity of a victim, the safety of the victim and the victim’s family, and the integrity of any ongoing investigation, shall be considered;

if an arrest has been made, information as to the defendant’s name, age, residence, occupation, marital status and similar background information and, the identity of the complaining party unless the release of such information is contrary to existing law or court rule;

information as to the text of any charges such as the complaint, accusation and indictment unless sealed by the court or unless the release of such information is contrary to existing law or court rule;

information as to the identity of the investigating and arresting personnel and agency and the length of the investigation;

information of the circumstances immediately surrounding the arrest, including but not limited to the time and place of the arrest, resistance, if any, pursuit, possession and nature and use of weapons and ammunition by the suspect and by the police; and

information as to circumstances surrounding bail, whether it was posted and the amount thereof.

Notwithstanding any other provision of this subsection, where it shall appear that the information requested or to be examined will jeopardize the safety of any person or jeopardize any investigation in progress or may be otherwise inappropriate to release, such information may be withheld. This exception shall be narrowly construed to prevent disclosure of information that would be harmful to a bona fide law enforcement purpose or the public safety. Whenever a law enforcement official determines that it is necessary to withhold information, the official shall issue a brief statement explaining the decision.

6. Compilations of criminal histories

Exemption 7(C) of the Freedom of Information Act (FOIA), codified at 5 U.S.C.S. § 552(b)(7)(C), requires the court to balance the privacy interest in maintaining the practical obscurity of the rap sheets against the public interest in their release. See, United States DOJ v. Reporters Comm. for Freedom of Press, 489 U.S. 749 (1989).

7. Victims

Pursuant to N.J.S.A. 47:1A-1.1, victims’ records are not government records, except that a victim of a crime shall have access to the victim’s own records.

N.J.S.A. 47:1A-1.1 contains the following definitions:

"Victim's record" means an individually-identifiable file or document held by a victims' rights agency which pertains directly to a victim of a crime except that a victim of a crime shall have access to the victim's own records.
"Victim of a crime" means a person who has suffered personal or psychological injury or death or incurs loss of or injury to personal or real property as a result of a crime, or if such a person is deceased or incapacitated, a member of that person's immediate family.

“Victims’ rights agency” means a public agency, or part thereof, the primary responsibility of which is providing services, including but not limited to food, shelter, or clothing, medical, psychiatric, psychological or legal services or referrals, information and referral services, counseling and support services, or financial services to victims of crimes, including victims of sexual assault, domestic violence, violent crime, child endangerment, child abuse or child neglect, and the Victims of Crime Compensation Board, established pursuant to P.L.1971, c. 317 (C.52:4B-1 et seq.) and continued as the Victims of Crime Compensation Office pursuant to P.L.2007, c. 95 (C.52:4B-3.2 et al.) and Reorganization Plan No. 001-2008.

N.J.S.A. 47:1A-2.2 provides:

Notwithstanding the provisions of P.L.1963, c. 73 (C.47:1A-1 et seq.) or the provisions of any other law to the contrary, where it shall appear that a person who is convicted of any indictable offense under the laws of this State, any other state or the United States is seeking government records containing personal information pertaining to the person’s victim or the victim’s family, including but not limited to a victim’s home address, home telephone number, work or school address, work telephone number, social security account number, medical history or any other identifying information, the right of access provided for in P.L.1963, c. 73 (C.47:1A-1 et seq.) as amended and supplemented shall be denied.

A government record containing personal identifying information which is protected under the provisions of this section may be released only if the information is necessary to assist in the defense of the requestor. A determination that the information is necessary to assist in the requestor’s defense shall be made by the court upon motion by the requestor or his representative.

Notwithstanding the provisions of P.L.1963, c. 73 (C.47:1A-1 et seq.) as amended and supplemented, or any other law to the contrary, a custodian shall not comply with an anonymous request for a government record which is protected under the provisions of this section.

Additionally, N.J.A.C. 10A:22-2.1 provides:

(a) Pursuant to N.J.S.A. 47:1A-2.2 , a person convicted of any indictable offense under the laws of this State, any other state or the United States shall be denied access to a government record if the record contains personal information pertaining to the person's victim(s) or family member(s) of a victim(s).

(b) An exception to (a) above may be made only if a court, upon motion by the requester or his or her representative, has determined that the information is necessary to assist in the defense of the requester. The inmate or representative thereof shall submit the determination by the court to the custodian of records for review and release authorization determination.

8. Confessions

A confession that has been admitted into evidence is accessible to the public. See New Jersey Court Rules 1:38-1 et seq. Prior to being admitted into evidence in a court proceeding, a confession is part of a criminal investigatory file and is exempt from the definition of “government record” under OPRA.

9. Confidential informants

10. Police techniques

N.J.S.A. 47:1A-1.1 exempts from access:

“emergency or security information or procedures for any buildings or facility which, if disclosed, would jeopardize security of the building or facility or persons therein;” and “security measures and surveillance techniques which, if disclosed, would create a risk to the safety of persons, property, electronic data or software.”

Gilleran v. Township of Bloomfield 227 N.J. 159 (2016) - Supreme Court of New Jersey determined that security camera footage of municipal parking lot was exempt from access under OPRA due to the two security exemptions in OPRA.

11. Mugshots

Executive Order 69 (Whitman 1997) provides that fingerprint cards, plates and photographs and similar criminal investigation records that are required to be made, maintained or kept by any State or local government agency are exempt from disclosure under OPRA.

12. Sex offender records

In Doe v. Poritz, 142 N.J. 1 (1995), the Supreme Court examined the constitutionality of two statutes concerning sex offenders that were enacted as part of a group of laws generally referred to as Megan's Law. The Registration Law, N.J.S.A. 2C:7-1 to :7-5, required that certain convicted sex offenders register with law enforcement authorities. The Community Notification Law, N.J.S.A. 2C:7-6 to :7-11, provided for notice to the community of the presence of such offenders.

In ruling that both laws were constitutional, the court held that the constitution did not prevent society from attempting to protect itself from convicted sex offenders, so long as the means of protection were reasonably designed for that purpose, and only for that purpose, and were not designed to punish. The court found, however, that appellant had a protectable liberty interest in his privacy and reputation, which triggered the right to due process. The court, therefore, concluded that a judicial hearing was constitutionally mandated prior to community notification under the Community Notification Law.

13. Emergency medical services records

14. Police video (e.g, body camera footage, dashcam videos)

15. Biometric data (e.g., fingerprints)

16. Arrest/search warrants and supporting affidavits

17. Physical evidence

P. Prison, parole and probation reports

N.J.A.C. 10A:71-2.2 provides:

(a) In addition to records designated as confidential pursuant to the provisions of N.J.S.A. 47:1A-1 et seq., any other law, rule promulgated under the authority of any statute or Executive Order of the Governor, resolution of both houses of the Legislature, Executive Order of the Governor, Rules of Court, or any Federal law, Federal regulation, or Federal order, the following records shall be deemed confidential and shall not be subject to public access:

Information, files, documents, reports, records or other written materials concerning an offender's alcohol, drug or other substance abuse evaluation, history and/or treatment;

Information, files, documents, reports, records or other written materials that, if disclosed, would infringe or jeopardize privacy rights of the offender or others or endanger the life or physical safety of any person;

Investigative reports or information, including those from informants that, if disclosed, would impede ongoing investigations, create a risk of reprisal, or interfere with the security or orderly operation of an institution or a community program;

Investigative reports or information compiled or intended for law enforcement purposes that, if disclosed, would impede ongoing investigations, interfere with law enforcement proceedings, constitute an unwarranted infringement of personal privacy, reveal the identity of a confidential source or confidential information furnished only by a confidential source, reveal investigative techniques and procedures or endanger the life or physical safety of law enforcement personnel, confidential informants, victims or witnesses;

Standard operating procedures, manuals, and training materials, that may reveal the Board's surveillance, security, tactical, investigative, or operational techniques, measures, or procedures, which, if disclosed, would create a risk to the safety of persons, property, electronic data, or software, or compromise the Board's ability to effectively conduct investigations;

Information, files, documents, reports, records or other written materials that, if disclosed, would impede Board functions by discouraging persons from providing information to the Board;

An electronic recording or a transcript, if prepared, of any proceeding of the Board;

Such other information, files, documents, reports, records or other written materials as the Board may deem confidential to insure the integrity of the parole and parole supervision processes; and

A record that consists of information, statement or testimony in written, audio or video form provided by a victim or, if the victim is deceased, the nearest relative of the victim. This shall include, but not be limited to, any information obtained pursuant to N.J.A.C. 10A:71-3.48, Victim registration, the continuing notice and the extent of any physical harm or psychological or emotional harm or trauma suffered by the victim, the extent of any loss of earnings or ability to work suffered by the victim, the continuing effect of the crime upon the victim's family, personal information pertaining to the victim or victim's family such as the victim's home address, home telephone number, work or school address, work telephone number, social security account number, medical history or any other identifying information unless the requested information, statement or testimony in written, audio or video form was given at a public proceeding.

(b) No information, files, documents, reports, records or other written material deemed confidential pertaining to inmates or parolees shall be reviewed by any person except a Board member or employee or individual or law enforcement agency authorized by the Board or by the Chairperson.

(c) Inmates or parolees shall be afforded disclosure of adverse material or information considered at a hearing, provided such material is not classified as confidential by the Board or the Department. If disclosure is withheld, the reason for nondisclosure shall be noted in the Board's files, and such material or information shall be identified as confidential.

(d) If any non-confidential file, document, report, record or other written material shall contain information deemed confidential pursuant to (a) above, the information deemed confidential shall be deleted prior to the file, document, report, record or other written material being reviewed by or released to any person or agency.

Q. Professional licensing records

Licensing records held by public agencies are “government records” under OPRA. They may, however, be exempt from access under one of the specific exemptions contained in OPRA or under a separate statute or other legal authority pertaining to the specific license and/or record at issue.

R. Public utility records

Records filed with the Board of Public Utilities (“BPU”) are “government records” under OPRA. Certain records, however, may be exempt from access under one of the specific exemptions contained in OPRA. Moreover, the BPU regulations (N.J.A.C. 14:3-6.1-6.8) may exempt certain records from access.

4. Deeds, liens, foreclosures, title history

5. Zoning records

T. School and university records

1. Athletic records

2. Trustee records

3. Student records

4. School foundation/fundraising/donor records

5. Research material or publications

6. Other

N.J.S.A. 47:1A-10 provides:

Notwithstanding the provisions of P.L.1963, c. 73 (C.47:1A-1 et seq.) or any other law to the contrary, the personnel or pension records of any individual in the possession of a public agency, including but not limited to records relating to any grievance filed by or against an individual, shall not be considered a government record and shall not be made available for public access, except that:

an individual’s name, title, position, salary, payroll record, length of service, date of separation and the reason therefor, and the amount and type of any pension received shall be a government record;

personnel or pension records of any individual shall be accessible when required to be disclosed by another law, when disclosure is essential to the performance of official duties of a person duly authorized by this State or the United States, or when authorized by an individual in interest; and

data contained in information which disclose conformity with specific experiential, educational or medical qualifications required for government employment or for receipt of a public pension, but not including any detailed medical or psychological information, shall be a government record.

See also, Kovalcik v. Somerset County Prosecutor's Office, 206 N.J. 581 (2011) - Curricula vitae and a list of classes taken by two detectives pertaining to investigation and confession may have been exempt from the Open Public Records Act, N.J. Stat. Ann. §§ 47:1A-1 to -13, disclosure requirements as personnel records pursuant to N.J. Stat. Ann. § 47:1A-10 if the documents evidenced an employee’s educational background or an employee’s participation in educational pursuits generally. Remand was necessary to determine the contents of the documents and the specific educational requirements for employment as a detective.

U. State guard records

The Department of Corrections’ (“DOC”) regulations governing access to public records is codified at N.J.A.C. 10a:22-1.1-4.3. Subject to these regulations, the DOC is an agency governed by OPRA. Conley v. New Jersey Dep't of Corr., 452 N.J. Super. 605 (App. Div. 2018).

V. Tax records

Municipal property tax records (including assessments, payments, etc.) are “government records” under OPRA. Commercial property records are also “government records” under OPRA, however, the Income and Expense Statements required to be filed by commercial property owners are confidential by statute. NJ State Income tax returns are also confidential by statute.

W. Vital Statistics

1. Birth certificates

(a) The State Registrar or a local registrar may only issue a certified copy of a record of live birth to a person who satisfies the following requirements:

The person is able to identify the record;

The person provides, at a minimum, all of the information requested on the Vital Statistics and Registration application form; and

The person produces documentation verifying that he or she is:

The subject of the record of live birth;

The subject's parent;

iii. The subject's legal guardian or legal representative;

The subject's child, grandchild or sibling, if of legal age;

A State or Federal agency requesting the record for official purposes;

A person requesting the record pursuant to a court order; or

vii. A person requesting the record under emergent circumstances, as determined on a case-by-case basis by the Commissioner.

N.J.A.C. 8:2-2.2 provides:

(a) The State Registrar or local registrar may issue certifications containing information obtained from the record of live birth to requestors not identified in N.J.A.C. 8:2B-3.1(a)3 so long as those requestors are first able to identify the record sought.

(b) All certifications issued under (a) above shall state that they are for informational purposes only and are not to be used for identification or legal purposes.

3. Death certificates

(a)The State Registrar or a local registrar may only issue a certified copy of a death record to a person who satisfies the following requirements:

The person is able to identify the record;

The person provides, at a minimum, all of the information requested on the Vital Statistics and Registration form entitled "Application for a Certification or a Certified Copy of a Vital Record," available from the Department upon request by calling (609) 292-4087 and at http://nj.gov/health/vital/vital.shtml; and

The person produces documentation verifying that he or she is:

The parent of the subject of the death record;

The subject's legal guardian or legal representative;

iii. The subject's spouse or domestic partner;

The subject's child, grandchild or sibling, if of legal age;

A State or Federal agency requesting the record for official purposes;

A person requesting the record pursuant to a court order; or

vii. A person requesting the record under emergent circumstances, as determined on a case-by-case basis by the Commissioner.

(b)The certified copy of the death record shall include information deemed appropriate by the State Registrar; however, at a minimum, it shall include the name of the decedent, place of death (county, municipality), date of death, sex, date of birth, date of issuance and manner of death, providing this information is available.

(c)The certified copy of the death record may include other information; however, the last sickness and death particulars (cause of death and medical particulars) will only be included on the certified copy of the death record if the applicant satisfies the requirement in (a)3 above and requests that the last sickness and death particulars be included.

(d)Any of the relatives to the decedent listed in (a)3i through iv above, with the exception of the funeral director as legal representative, may consent to the release to a third party of a certified copy of the death record containing cause of death and medical particulars. Such consent must be provided in the form of an Authorization for Release of Cause of Death similar to that set forth in Appendix A, incorporated herein by reference.

(e)Any certified copy of a death record, with or without last sickness and death particulars, may be released without consent under the following conditions:

To qualified personnel for the purpose of conducting scientific research only under the following conditions:

An Institutional Review Board, constituted pursuant to Federal regulation 45 C.F.R. 46.101 et seq., shall review and approve the research protocol prior to release of the death record;

Research personnel shall not identify the subject of the record, directly or indirectly, in any report of the research; and

iii. Research personnel shall not disclose the identity of the subject of the record in any manner;

To qualified personnel for the purpose of conducting management audits, financial audits or program evaluation only under the following conditions:

Personnel shall not identify the subject of the record, directly or indirectly, in any report of an audit or evaluation;

Personnel shall not disclose the identity of the subject of the record in any manner; and

iii. Identifying information shall not be released to the personnel unless it is vital to the audit or evaluation;

To the Department as required by State or Federal law; or

As permitted by the rules adopted by the Commissioner for the purposes of disease prevention and control.

N.J.A.C. 8:2A-2.2 provides:

(a)The State Registrar or local registrar may issue certifications containing information obtained from the death record to requestors not identified in N.J.A.C. 8:2A-2.1(a)3, so long as those requestors are first able to identify the record sought.

(b)All certifications issued under (a) above shall state that they are for informational purposes only and are not to be used for identification or legal purposes.

(c)The certification of the death record shall include, at a minimum, the name of the decedent, place of death (county, municipality), date of death, sex, date of birth, date of issuance and manner of death providing this information is available.

(d)The certification of the death record may include other information; however, the last sickness and death particulars (cause of death and medical particulars) will only be included on the certification of the death record if the applicant produces documentation verifying that he or she is:

The parent of the subject of the death record;

The subject's legal guardian or legal representative;

The subject's spouse or domestic partner;

The subject's child, grandchild or sibling, if of legal age;

A State or Federal agency requesting the record for official purposes;

A person requesting the record pursuant to a court order; or

A person requesting the record under emergent circumstances, as determined on a case-by-case basis by the Commissioner.

(e)Any of the relatives to the decedent listed in (d)1 through 4 above, with the exception of the funeral director as legal representative, may consent to the release to a third party of a certification of the death record containing cause of death and medical particulars. Such consent must be provided in the form of an Authorization for Release of Cause of Death similar to that set forth in the chapter Appendix, incorporated herein by reference.

(f)Any certification of a death record, with or without last sickness and death particulars, may be released without consent under the following conditions:

1.To qualified personnel for the purpose of conducting scientific research only under the following conditions:

ii.Research personnel shall not identify the subject of the record, directly or indirectly, in any report of the research; and

iii.Research personnel shall not disclose the identity of the subject of the record in any manner;

2.To qualified personnel for the purpose of conducting management audits, financial audits or program evaluation only under the following conditions:

i.Personnel shall not identify the subject of the record, directly or indirectly, in any report of an audit or evaluation;

ii.Personnel shall not disclose the identity of the subject of the record in any manner; and

iii.Identifying information shall not be released to the personnel unless it is vital to the audit or evaluation;

3.To the Department as required by State or Federal law; or

4.As permitted by the rules adopted by the Commissioner for the purposes of disease prevention and control.

(g)The State Registrar or other custodian of vital records shall not permit physical inspection or access to the full death record, nor shall he or she disclose information, copy or issue the full death record, unless he or she is satisfied that the applicant is authorized to obtain a full copy of such record under N.J.A.C. 8:2A-2.1 or 2.2.

IV. Procedure for obtaining records

A. How to start

N.J.S.A. 47:1A-5(f) provides that the custodian of a public agency shall adopt a form for the use of any person. The form shall provide space for the name, address and phone number of the requestor and a brief description of the record sought. The use of the particular form is not, however, required by OPRA.

The Appellate Division held in Renna v. County of Union, 407 N.J.Super. 230 (App. Div. 2009) that all OPRA requests must be in writing but that no custodian shall withhold records if the written request contains the requisite information prescribed by N.J.S.A. 47:1A-5(f) (name, address, phone number and a brief description of the records sought).

1. Who receives a request?

N.J.S.A. 47:1A-5(g) provides that the request shall be conveyed to the custodian. N.J.S.A. 47:1A-1.1 defines a custodian, in the case of a municipality to be the municipal clerk and in the case of other agencies to be the person officially designated by the agency's governing body.

2. Does the law cover oral requests?

3. Required contents of a written request

4. Can the requester choose a format for receiving records?

5. Availability of expedited processing

B. How long to wait

1. Statutory, regulatory or court-set time limits for agency response

N.J.S.A. 47:1A-5(i) directs that custodian shall grant or deny a request for access as soon as possible but not later than seven business days unless the record is archived or in storage or the request would substantially disrupt agency operations. N.J.S.A. 47:1A-5(e) provides that immediate access should ordinarily be granted to budgets, bills, vouchers, contracts and public employee salary and overtime information.

2. Informal telephone inquiry as to status

Usually the only way to spur action on a request is to follow-up by telephone within a day or two after the request is received. Be persistent and continue up the chain of command within the agency until you get a decision.

3. Is delay recognized as a denial for appeal purposes?

4. Any other recourse to encourage a response

Often a phone call to an elected or politically appointed public official can be helpful, since these individuals usually are more responsive to the media than bureaucrats. Also a call from the newspaper's attorney to the attorney representing the public agency can be effective.

C. Administrative appeal

Under OPRA, the remedy for denial of a request for public records is by initiating a summary proceeding in the Law Division of the Superior Court by way of a Verified Complaint and Order to Show Cause. R. 4:67. The statute also provides an alternate mechanism, at the sole option of the requestor, of filing a complaint with the Government Records Council. N.J.S.A. 47:1A-6. Claims under the common law right to know are only cognizable in Superior Court.

1. Time limit to file an appeal

2. To whom is an appeal directed?

Under OPRA, the remedy for denial of a request for public records is by initiating a summary proceeding in the Law Division of the Superior Court by way of a Verified Complaint and Order to Show Cause. R. 4:67. The statute also provides an alternate mechanism, at the sole option of the requestor, of filing a complaint with the Government Records Council. N.J.S.A. 47:1A-6. Claims under the common law right to know are only cognizable in Superior Court.

4. Contents of appeal

5. Waiting for a response

6. Subsequent remedies

D. Additional dispute resolution procedures

1. Attorney General

2. Ombudsperson

3. Other

E. Court action

1. Who may sue?

Any "citizen" of New Jersey who has been denied the right to inspect, copy, or obtain a copy of public record may bring an action to enforce the rights granted under OPRA or the common law. Irval Realty Inc. v. Board of Public Utility Comm'rs, supra. "Citizen" includes newspapers published or circulated in New Jersey and any private commercial enterprise, even if motivated solely by "private pecuniary gain." Techniscan Corp. v. Passaic Valley Water Comm’n, supra.

Although OPRA expressly provides that “government records shall be readily accessible…by citizens of this State” (N.J.S.A. 47:1A-1), the New Jersey Attorney General’s Office has advised of its position that OPRA does not prohibit access by residents of other States.

In the Matter of the New Jersey Firemen’s Association Obligation to Provide Relief Applications Under the Open Public Records Act, 230 N.J. 258 (2017) - involved the filing by the Association of a declaratory judgment action in response to an OPRA request so as to obtain a judicial determination of its responsibilities under OPRA. The Court held that the declaratory judgment action was improper because at the time it was filed the Association had already made a determination of its legal obligation with respect to the requested records and denied access to same, thereby extinguishing the controversy between the parties. The Supreme Court further held that once the Association denied access to the requested records, N.J.S.A. 47:1A-6 authorized only Carter to seek judicial review of that decision. The Supreme Court expressly left open the question of “whether a public entity may file a pre-denial declaratory judgment action when confronted with an unsettled question that has not been litigated before and that implicates OPRA’s privacy prong, N.J.S.A. 47:1A-1.”

3. Pro se

4. Issues the court will address

In a court action, the court will consider all issues raised by the pleadings, including denial of access to the records, the reasonableness of any fees, delays in obtaining records. See Techniscan Corp. v. Passaic Valley Water Comm’n, supra. In an action before the Government Records Council, the council may only consider claims arising under OPRA.

a. Denial

b. Fees for records

c. Delays

d. Patterns for future access (declaratory judgment)

5. Pleading format

A suit to obtain access to records is styled with the party seeking access as the plaintiff and the public agency and/or the record custodian as the defendant. A complaint to the Government Records Council merely must be a writing alleging that a custodian has improperly denied access. N.J.S.A. 47:1A-7(d).

6. Time limit for filing suit

The time limit for filing a Verified Complaint and Order to Show Cause to obtain records from a public agency or official is 45 days from the date of denial. However, another request for the same records can be made at any time by another party, thereby triggering a new 45-day time limit for filing suit. See Shuttleworth v. City of Camden, supra. It is not clear whether a complaint to the Government Records Council will also be subject to the 45-day limit although it is likely that will be the case.

8. Burden of proof

9. Judicial remedies available

10. Litigation expenses

a. Attorney fees

b. Court and litigation costs

11. Fines

12. Other penalties

13. Settlement, pros and cons

F. Appealing initial court decisions

1. Appeal routes

Appeal from an adverse decision in the Superior Court, Law Division is to the Appellate Division of the Superior Court. Likewise, appeals from decisions of the Government Records Council are appealable to the Appellate Division. Further appeal is to the New Jersey Supreme Court.

2. Time limits for filing appeals

The time limit for appeal from a decision of the Superior Court, Law Division is 45 days from the entry of the final judgment or order. Rule 2:4-1. A petition for certification seeking review by the Supreme Court of a final judgment of the Appellate Division must be filed within 20 days of entry of final judgment. Rule 2:13-3.

3. Contact of interested amici

Amicus briefs on important issues of access and other free press/fair trial issues often are filed by the New Jersey Press Association and/or some of the major newspapers circulated in New Jersey, such as Newark Star Ledger, The Trenton Times, The Philadelphia Inquirer, The New York Times, and the Gannett group newspapers. In addition, the Reporters Committee for Freedom of the Press frequently files amicus briefs when open records issues are before the New Jersey Supreme Court.

B. What governments are subject to the law?

1. State

2. County

3. Local or municipal

C. What bodies are covered by the law?

1. Executive branch agencies

a. What officials are covered?

OPMA applies only to a "public body" — "a commission, authority, board, council, committee or any group of two or more persons organized under the laws of this State and collectively empowered as a voting body to perform a public governmental function . . . or collectively authorized to spend public funds." N.J.S.A. 10:4-8a. Therefore the activities of an executive such as the Governor or a mayor are not covered by the law.

b. Are certain executive functions covered?

c. Are only certain agencies subject to the act?

All other executive agencies which are organized under the laws of New Jersey and "collectively empowered as a voting body to perform a public governmental function affecting the rights, duties, obligations, privileges, benefits or other legal relations of any person, or collectively authorized to spend public funds," are subject to all provisions of OPMA. Specifically excluded from coverage are: (i) the judicial branch of government; (ii) any grand or petit jury; (iii) any parole board or any agency acting in a parole capacity; (iv) the State Commission of Investigation; (v) the Appointment Commission; and (vi) any political party. N.J.S.A. 10:4-8a (emphasis added).

4. Nongovernmental bodies receiving public funds or benefits

OPMA only applies to a commission, authority, board, council, committee or group of two or more persons "organized under the laws of" New Jersey. Unless there is a statute, ordinance or regulation creating the organization, it is not subject to the provisions of the Sunshine Law. N.J.S.A. 10:4-8a

The Times of Trenton Publishing Company v. Lafayette Yard Community Development Corporation, 183 N.J. 519 (2005). Lafayette Yards was a private, non-profit corporation established solely to assist the City of Trenton, the Trenton Parking Authority and the State of New Jersey to provide for the redevelopment of a 3.1 acre site in Trenton through the construction of a hotel, conference center and parking facility. The corporation operated under certain constraints consistent with the Internal Revenue Code so that it could issue tax exempt bonds because its debt would then be deemed by the IRS to have been issued on behalf of the State or a political subdivision thereof. Among the constraints was a provision that title to the corporation's property revert to the City of Trenton when the Corporation's indebtedness was retired. Similarly, the City appointed or approved of the appointment of at least 80 percent of the corporation's governing board. The Times of Trenton sought to attend meetings of the board under the Sunshine Law and sought access to the board minutes under OPRA. The New Jersey Supreme Court determined that the Corporation was subject to both statutes because it is a public body performing a governmental function within the sunshine law and was an instrumentality or agency created by a political subdivision under OPRA. See also Sussex Commons Associates, LLC v. Rutgers, 416 N.J. 537 (App. Div. 2010).

8. Other bodies to which governmental or public functions are delegated

Any commission, authority, board, council, committee or group of two or more persons which is created by statute, ordinance or regulation and collectively empowered as a voting body to perform a government function or spend public funds is subject to all the provisions of OPMA, N.J.S.A. 10:4-8(a). SeeCouncil of New Jersey State College Locals v. New Jersey State College Governing Boards Ass'n, 266 N.J. Super. 556, 545 A.2d 204 (App. Div. 1988).

9. Appointed as well as elected bodies

D. What constitutes a meeting subject to the law

In order to constitute a meeting subject to the provisions of OPMA, there must be a "gathering," either in person or by means of communications equipment, which is open to all members of the public body and which is held with the intent to discuss or act on specific public business. N.J.S.A. 10:4-8b. Typical partisan caucus meetings and chance encounters of members of public bodies are not intended to be covered by OPMA. Introductory Statement, Assembly No. 1030, L.1975, c.231. A meeting does not include any such gathering (1) attended by less than an effective majority of the members of a public body, or (2) attended by or open to all the members of three or more similar public bodies at a convention or similar gathering. N.J.S.A. 10:4-8b.

1. Number that must be present

A meeting attended by less than a quorum or majority of the members of the public body is not subject to the provisions of OPMA, unless this group has effective authority to act on public business or prevent public business from coming before the public body. N.J.S.A. 10:4-8b and c; Atty. Gen. Formal Opinion 1976, No. 19. OPMA specifically prohibits any person or public body from failing to invite a portion of its members to a meeting "for the purpose of circumventing" any provisions of the law. N.J.S.A. 10:4-11. Thus, a public body cannot hold two or more meetings with small groups of its members to discuss an issue in order to avoid holding a public meeting of all members on the issue.

b. What effect does absence of a quorum have?

2. Nature of business subject to the law

Any meeting of a public body held with the intent to discuss or act on any matter related either directly or indirectly to the performance of the public body's function or the conduct of its business is covered by OPMA. N.J.S.A. 10:4-8b. Since the law applies to both discussions and actions by a public body, information-gathering and fact-finding sessions and all deliberations toward a decision must be open to the public and subject to the other requirements of OPMA. See Allan-Deane Corp. v. Bedminster Twp., 153 N.J. Super. 114, 379 A.2d 265 (App. Div. 1977); South Harrison Township Committee v. Board of Chosen Freeholders, 210 N.J. Super. 370, 510 A.2d 42 (App. Div. 1986).

a. "Information gathering" and "fact-finding" sessions

Since the law applies to both discussions and actions by a public body, information-gathering and fact-finding sessions must be open to the public and subject to the other requirements of OPMA. See Allan-Deane Corp. v. Bedminster Twp., 153 N.J. Super. 114, 379 A.2d 265 (App. Div. 1977); South Harrison Township Committee v. Board of Chosen Freeholders, 210 N.J. Super. 370, 510 A.2d 42 (App. Div. 1986.

b. Deliberation toward decisions

Since the law applies to both discussions and actions by a public body, deliberations toward decisions must be open to the public and subject to the other requirements of OPMA. See Allan-Deane Corp. v. Bedminster Twp., 153 N.J. Super. 114, 379 A.2d 265 (App. Div. 1977); South Harrison Township Committee v. Board of Chosen Freeholders, 210 N.J. Super. 370, 510 A.2d 42 (App. Div. 1986.

b. Notice

A schedule of regular public meetings must be adopted by each public body within seven days following its annual reorganization meeting or, if no reorganization meeting is held, then by January 10 of each year. If the schedule of regular meetings is thereafter revised, notice of the revisions must be given within seven days following such revision. N.J.S.A. 10:4-18.

The annual schedule of regular meetings must be mailed to at least two newspapers circulated within the area of jurisdiction of the public body, including one newspaper which is to be designated as the "official newspaper" of the public body. (Note that the schedule need not be published by the newspapers; it must only be mailed to them.) N.J.S.A. 10:4-18; 10:4-8d; seeTownship of Bernards v. State Dept. of Community Affairs, 233 N.J. Super. 1, 558 A.2d 1 (App. Div.), certif. den. 118 N.J. 194, 195, 570 A.2d 959 (1989). The schedule must also be filed with: (i) the clerk of the municipality, for municipal public bodies; or (ii) the clerk of the county, for county-wide public bodies; or (iii) the Secretary of State, for state-wide public bodies. N.J.S.A. 10:4-8d. Additionally, the schedule must be mailed to any person who has requested it in writing and prepaid the fee established by the public body for such service. Requests for the schedule of regular meetings and notice of special meetings must be renewed annually. N.J.S.A. 10:4-19.

The annual schedule of regular meetings and any revisions must be prominently posted in at least one public place reserved for such announcements. N.J.S.A. 10:4-8. The place of posting is usually adopted by resolution of the public body, and generally is a bulletin board located in or near the public building where the meetings are held.

The annual schedule of regular meetings need not include the proposed agenda for each meeting. SeeN.J.S.A. 10:4-18. Consequently, there is no requirement that a public body give notice of the proposed agenda for each regularly scheduled meeting. See Crifasi v. Governing Body of Oakland, 156 N.J. Super. 182, 383 A.2d 736 (App. Div. 1978). However, most public bodies do post the agenda for each regularly scheduled meeting shortly after it is prepared. The agenda is usually posted in the same location as the annual schedule of regular meetings. When the agenda of a regular meeting is posted, the public body is not limited to discussion or action on that agenda; it may take up items not on the agenda unless the omission was intentional and was designed to deceive the public. See Crifasi v. Governing Body of Oakland, supra.

The annual schedule of regular meetings must contain the date and time of each meeting and its location "to the extent known." N.J.S.A. 10:4-18.

Where adequate notice of a regular public meeting has not been given, any person may: (i) seek injunctive relief in Superior Court to prevent the meeting from being held, N.J.S.A. 10:4-16; or (ii) bring an action in Superior Court within 45 days after the meeting to void any action taken, N.J.S.A. 10:4-15. Additionally, on complaint of the Attorney General or the County Prosecutor, any person who knowingly violates any provision of OPMA shall be fined $100 for the first offense and $500 for any subsequent offense. N.J.S.A. 10:4-17.

c. Minutes

A public body is required to keep "reasonably comprehensible" (sic) minutes of all meetings showing the time and place, the members present, the subject considered, the actions taken, and the vote of each member. N.J.S.A. 10:4-14. The minutes need not reveal why the action was or was not taken, only what took place and what final action was taken. Liebeskind v. Mayor and Council of Bayonne, 265 N.J. Super. 389, 627 A.2d 677 (App. Div. 1993). The minutes must also contain a statement specifying the time, place and manner in which public notice of the meetings was given. N.J.S.A. 10:4-10a. See AQN Ass'n v. Florence Twp., 248 N.J. Super. 597, 591 A.2d 995 (App. Div. 1991).

The minutes of all public meetings, including portions of any meeting from which the public was properly excluded, are public records under the Open Public Records Act. See South Jersey Publishing Co. v. New Jersey Expressway Authority, 124 N.J. 461, 591 A.2d 921 (1991). Promptly available has been held to mean two weeks or before the next meeting of the public body, whichever is earlier. SeeMatawan Reg. Teachers Ass'n v. Matawan-Aberdeen Reg. Bd. of Educ., 212 N.J. Super. 322, 514 A.2d 1361 (Law Div. 1986).

2. Special or emergency meetings

a. Definition

A special meeting is any meeting not listed on the annual schedule of regular meetings for which written advance notice of at least 48 hours can be given. N.J.S.A. 10:4-8d; 10:4-9b(4). An emergency meeting is one that, upon the affirmative vote of three-quarters of the members present, is determined to be necessary in order to deal with a matter of such urgency and importance that delay for the purpose of providing adequate notice would be likely to result in substantial harm to the public interest. N.J.S.A. 10:4-9b(1).

b. Notice requirements

At least 48 hours advance notice must be given for any special meeting. N.J.S.A. 10:4-8d. Notice of an emergency meeting must be provided "as soon as possible following the calling of such meeting." N.J.S.A. 10:4-9b(3).

Notice of a special meeting must be "mailed, telephoned, telegrammed or hand delivered" to two newspapers at least 48 hours prior to the start of the meeting. N.J.S.A. 10:4-8d. Note that the newspaper need not publish the notice. However, one of the newspapers to which notice is sent must have a publication schedule which would permit publication prior to the meeting. SeeWorts v. Mayor and Council of Upper Township, 176 N.J. Super. 78, 442 A.2d 112 (Ch. Div. 1980). Notice of a special meeting must also be filed with the clerk who received the annual schedule, N.J.S.A. 10:4-8d, and mailed at least 48 hours in advance to any person who has filed a request for the annual schedule. N.J.S.A. 10:4-19. Notice of an emergency meeting must be telephoned, telegrammed or delivered to the two newspapers which received the annual schedule. N.J.S.A. 10:4-9b(3).

Notices of special and emergency meetings must be posted in the same location as the annual schedule. N.J.S.A. 10:4-8d and 10:4-9b(3).

The notices of both special and emergency meetings must include the agenda "to the extent known." N.J.S.A. 10:4-8d and 10:4-9a. Note that an emergency meeting is limited to "discussion of and acting with respect to such matters of urgency and importance" as gave rise to the need to call the emergency meeting. N.J.S.A. 10:4-9b(2).

Notices of special and emergency meetings must also include the time, date and location of the meeting and whether formal action may or may not be taken. N.J.S.A. 10:4-8d and 10:4-9a.

The penalties and remedies for failure to give adequate notice of a special meeting are the same as those for a regular meeting, i.e., injunctive relief, voiding of action taken, and fines. N.J.S.A. 10:4-15, 16 and 17. Where no valid emergency exists, or where there is not even an attempt to comply with the notice requirements for an emergency meeting, the same penalties may be imposed. SeeDunn v. Mayor and Council and Clerk of Laurel Springs, 163 N.J. Super. 32, 394 A.2d 145 (App. Div. 1978).

c. Minutes

The information required in the minutes of a special or emergency meeting is the same as that for regular meetings, and the minutes must be "promptly" available to the public. N.J.S.A. 10:4-14. In addition, the minutes of an emergency meeting must state the nature of the urgency and importance and the substantial harm to the public interest likely to result from a delay in holding the meeting. N.J.S.A. 10:4-10b.

3. Closed meetings or executive sessions

a. Definition

A public body in New Jersey is permitted to go into closed session and exclude the public from attendance only when "discussing" nine specific subject matter areas. See N.J.S.A. 10:4-12b. These will be treated in detail in Section II below. Note that a closed session is limited to discussions; one case has held that a public body can debate an issue in closed session, but cannot act on it. Houman v. Pompton Lakes, 155 N.J. Super. 129, 382 A.2d 413 (Law Div. 1977).

b. Notice requirements

In order to go into closed session, a public body must adopt a resolution at a public meeting for which public notice pursuant to N.J.S.A. 10:4-18 has been given. N.J.S.A. 10:4-13.

Once the resolution to go into closed session is adopted at a public meeting, no further notice of the closed session is required. N.J.S.A. 10:4-13; see Atty. Gen. Formal Op. 1976, No. 29. However, where the closed session is to discuss termination or disciplining of personnel, actual notice of the session must be given to the affected employees so they can decide if they desire a public meeting. SeeRice v. Union Cnty. Regional Bd. of Educ., 155 N.J. Super. 64, 382 A.2d 386 (App. Div. 1977);see alsoKean Fed’n of Teachers v. Morrell, 233 N.J 566, 586, 187 A.3d 153, 165 (N.J. 2018).

Notice for the public meeting at which the resolution to enter into executive session has been adopted must be posted pursuant to N.J.S.A. 10:4-8.

The resolution to go into closed session must (i) state the "general nature" of the subject matter to be discussed in the closed session, and (ii) state "as precisely as possible" the time when and the circumstances under which the discussion conducted in closed session can be disclosed to the public. N.J.S.A. 10:4-13. In an unpublished decision, Paff v. Monroe Township Board of Education, 2007 WL 191984 (Law Div.), the Court indicated that a Resolution restating the provisions of the law allowing a closed session is not in compliance with the statute.

The penalties and remedies for improperly resolving to go into closed session are the same as those for other violations, i.e., injunctive relief, voiding of the action taken, and fines. See N.J.S.A. 10:4-15, 16 and 17.

d. Requirement to meet in public before closing meeting

e. Requirement to state statutory authority for closing meetings before closure

A resolution to go into closed session which merely "parrots" the statutory language is insufficient. The resolution should contain as much information as is consistent with full public knowledge without doing harm to the public interest that supports the closure. Council of New Jersey State College Locals v. Trenton State, 284 N.J. Super. 108, 663 A.2d 664 (Law Div. 1995). See Houman v. Mayor of Pompton Lakes, 155 N.J. Super. 129, 149-50, 382 A.2d 413 (Law Div. 1977) and McGovern v. Rutgers, 2011 N.J. Super. Lexis 32 (App. Div., 2011).

f. Tape recording requirements

F. Recording/broadcast of meetings

While OPMA is silent on the issue of sound and photographic recording of public meetings, the courts have held that such a right is inherent in the law. Both sound and photographic recordings are therefore permitted subject to reasonable regulations, which generally should follow the New Jersey Supreme Court Guidelines for still and television camera and audio coverage of proceedings in the courts of New Jersey. See Maurice River Board of Education v. Maurice River Teachers Ass'n, 187 N.J. Super. 566, 455 A.2d 563 (Law Div. 1982), aff'd 193 N.J. Super. 488, 475 A.2d 59 (App. Div. 1984). The Supreme Court Guidelines permit (i) no more than two videotape cameras; (ii) no more than two still photographers; (iii) no more than one audio system for radio broadcasts; and (iv) no artificial lighting. The guidelines also require the media to obtain permission in advance and to position themselves in the areas designated. Movement of personnel and equipment is allowed only before or after the meeting or during recesses.

In a recently decided case, Tarus v. Borough of Pine Hill, 189 N.J. 497 (2007) the Supreme Court held there was a common law right to videotape a municipal council meeting subject to reasonable restrictions.

1. Sound recordings allowed

2. Photographic recordings allowed

G. Access to meeting materials, reports and agendas

H. Are there sanctions for noncompliance?

For a first offense of the open meetings law, a violator is fined $100. For any subsequent offenses the violator can be fined between $100 and $500. N.J.S.A. 10:4-17. By objecting to a closed meeting and stating the reasons for believing the meeting should be open, an official may be exempt from fines. N.J.S.A. 10:4-17. A court may void any action taken at an improperly closed meeting. N.J.S.A. 10:4-15(a).

II. Exemptions and other legal limitations

A. Exemptions in the open meetings statute

1. Character of exemptions

There are nine specific subject matter exceptions to the requirement that all meetings be open to the public. N.J.S.A. 10:4-12b(1) to (9). These exceptions are to be strictly construed in order that the broad public policy underlying OPMA is realized. Woodcock v. Calabrese, 148 N.J. Super. 526, 372 A.2d 1178 (Dist. Ct. 1977). See N.J.S.A. 10:4-7.

A closed session to discuss any of the excepted subjects is discretionary. Closure is permitted only after adoption of a resolution setting forth (i) the "general nature" of the subject to be discussed; and (ii) the time when and the circumstances under which the discussion conducted in closed session can be disclosed to the public. N.J.S.A. 10:4-12b and 10:4-13.

2. Description of each exemption

(i) any matter which, by express provision of federal or state statute or rule of court is rendered confidential;

(ii) any matter in which the release of information would impair the right to receive federal funds;

(iii) any matter the disclosure of which would constitute an unwarranted invasion of privacy, including records, reports, recommendations, data, or other personal material pertaining to a specific individual admitted to or served by a training, educational, social service, medical, health, custodial, child protection, rehabilitation, legal defense, welfare, housing, relocation, insurance, or similar program or institution operated by a public body, unless the individual concerned shall request in writing that the same be disclosed publicly;

(iv) any collective bargaining agreement, or the terms and conditions proposed for inclusion in a collective bargaining agreement, including the negotiation with employees or representatives of employees;

(v) any matter involving the purchase, lease or acquisition of real property with public funds, or the setting of banking rates or the investment of public funds, where the discussion could adversely affect the public interest;

(vi) any tactics or techniques to be used in protecting the safety and property of the public, where disclosure could impair such protection and any investigations of possible violations of the law;

(vii) any pending or anticipated litigation or contract negotiation in which the public body is or may be a party, or any matters falling within the attorney-client privilege;

(viii) any matter involving employment, appointment, termination of employment, evaluation of performance of, promotion or disciplining of any current or prospective public employee or appointee, unless all the individual employees or appointees whose rights could be adversely affected request in writing that such discussion take place at a public meeting. Note that this exception does not apply where the public body is appointing a person to fill the unexpired term of an elected official. See Gannett v. Board of Education of Manville, 201 N.J. Super. 65,492 A.2d 703 (Law Div. 1984);

(ix) any deliberations of a public body occurring after a public hearing that may result in the imposition of a specific civil penalty upon the responding party or the suspension or loss of a license or permit belonging to the responding party as a result of an act or omission for which the responding party bears responsibility. Note that this last exception applies only to the deliberations of a public body following a public hearing. However, where a state statute requires that the entire hearing be held in private, it takes precedence over this exception. SeeCringle v. Maywood Board of Education 164 N.J. Super. 595,397 A.2d 400 (Law Div. 1979). It is also important to note that the closed session is limited to discussion; any action by the public body must be taken in a duly noticed public meeting. See N.J.S.A. 10:4-12b and Houman v. Pompton Lakes, 155 N.J. Super. 129,382 A.2d 413 (Law Div. 1977).

B. Any other statutory requirements for closed or open meetings

C. Court mandated opening, closing

III. Meeting categories - open or closed

A. Adjudications by administrative bodies

Pursuant to the New Jersey Administrative Practice and Procedure Act, all contested matters before a state administrative agency are required to be referred to an administrative law judge for a hearing and a recommendation, report and decision. N.J.S.A. 52:14B-10(c). All evidentiary hearings, proceedings on motions and other applications before the administrative law judge are public, unless otherwise provided by statute, rule or regulation, or on order of the judge for good cause. N.J.A.C. 1:1-14.1. The principal statutory and regulatory exceptions to the public hearing requirement are in special education cases and in cases involving the Department of Human Services. Within 45 days of the hearing, the judge must issue a written report and decision, including recommended findings of fact and conclusions of law, to the administrative agency. N.J.S.A. 52: 14B-10(c). The head of the administrative agency or, in the case of a collective public body such as a commission, authority or board, the entire public body, then must issue a written decision adopting, rejecting or modifying the judge's decision.

1. Deliberations closed, but not fact-finding

The deliberations of a public body considering a judge's recommended decision on imposition of a civil penalty or suspension or loss of a license or permit may be held in closed session. N.J.S.A. 10:4-12b(9). However, the final written decision of the head of the agency or the public body is a matter of public record. See N.J.S.A. 52:14B-10(d).

2. Only certain adjudications closed, i.e. under certain statutes

B. Budget sessions

Where a budget session is attended by an effective majority of the public body, it is required to be open to the public. Where a budget session is attended by less than a quorum or effective majority, it is not required to be open to the public unless the group or committee has effective authority to act on portions of the budget or to prevent certain budget items from coming before the public body. See N.J.S.A. 10:4-8b and c; Atty. Gen. Formal Op. 1976, No. 19.

C. Business and industry relations

A meeting of an effective majority of a public body to discuss business and industry relations, including plans for attracting business, is required to be open to the public unless the discussions involve (i) purchase or lease or acquisition of real property with public funds, or (ii) contract negotiations, or (iii) where the release of information would impair the right to receive federal funds. See N.J.S.A. 10:4-12b(2),(5) and (7).

D. Federal programs

A meeting of an effective majority of public body to discuss applications for federal grants or other aspects of a federal program is open to the public unless the discussions involve (i) contract negotiations or (ii) anticipated litigation, or (iii) where the release of information would impair the right to receive federal funds. See N.J.S.A. 10:4-12b(2) and (7).

E. Financial data of public bodies

Access to these records is governed by the OPRA and the common law. A meeting of an effective majority of a public body to discuss business and industry relations, including plans for attracting business, is required to be open to the public unless the discussions involve (i) purchase or lease or acquisition of real property with public funds, or (ii) contract negotiations, or (iii) where the release of information would impair the right to receive federal funds. See N.J.S.A. 10:4-12b(2),(5) and (7).

I. Licensing examinations

J. Litigation, pending litigation or other attorney-client privileges

Discussions of litigation in which a public body is or anticipates being a party may be held in closed session. Also, any matter falling within the attorney-client privilege "to the extent that confidentiality is required in order for the attorney to exercise his [her] ethical duties as a lawyer" may be discussed in closed session. N.J.S.A. 10:4-12b(7). To invoke this exception, the public body must actually be discussing its strategy, the position it will take, the strengths and weaknesses of those positions, and possible settlement. This exception cannot be used as a pretext to discuss aspects of the matter not directly related to the litigation itself. See Atty. Gen. Formal Op. 1976, No. 30; Houman v. Pompton Lakes, 155 N.J. Super. 129,382 A.2d 413 (Law Div. 1977); Caldwell v. Lambrou, 161 N.J. Super. 284, 391 A.2d 590 (Law Div. 1978).

The parole board or any agency or body acting in a parole capacity is specifically exempted from coverage by the Sunshine Law, N.J.S.A. 10:4-8a, and therefore all meetings regarding parole matters may be held in closed session.

M. Patients, discussions on individual patients

N. Personnel matters

All discussions regarding the employment or appointment of a public employee, including interviews, and all discussions regarding evaluation, promotion, disciplining or termination of a public employee may be held in closed session unless the employee requests a public meeting in writing. N.J.S.A. 10:4-12b(8). Even where a public employee is guaranteed by state statute a public hearing on termination, the public body may go into closed session to deliberate. See N.J.S.A. 10:4-12b(9) and Della Serra v. Mountainside, 196 N.J. Super. 6, 481 A.2d 547 (App. Div. 1984). But where the public body is appointing a person to fill the unexpired term of an elected official, closure is not permissible. Gannett v. Board of Education of Manville, 201 N.J. Super. 65, 492 A.2d 703 (Law Div. 1984). However, anytime a public body intends to conduct a closed meeting involving the employment, appointment, termination of employment, terms and conditions of employment, evaluation of the performance of, promotion or disciplining of any specific public officer or employee, it must provide written notice in advance to the affected employees. SeeRice, 155 N.J. Super. 64; Kean Fed’n of Teachers, 233 N.J at 586.

1. Interviews for public employment

All discussions regarding the employment or appointment of a public employee, including interviews, and all discussions regarding evaluation, promotion, disciplining or termination of a public employee may be held in closed session unless the employee requests a public meeting in writing. N.J.S.A. 10:4-12b(8). Even where a public employee is guaranteed by state statute a public hearing on termination, the public body may go into closed session to deliberate. See N.J.S.A. 10:4-12b(9) and Della Serra v. Mountainside, 196 N.J. Super. 6, 481 A.2d 547 (App. Div. 1984). But where the public body is appointing a person to fill the unexpired term of an elected official, closure is not permissible. Gannett v. Board of Education of Manville, 201 N.J. Super. 65, 492 A.2d 703 (Law Div. 1984). However, anytime a public body intends to conduct a closed meeting involving the employment, appointment, termination of employment, terms and conditions of employment, evaluation of the performance of, promotion or disciplining of any specific public officer or employee, it must provide written notice in advance to the affected employee. Rice, 155 N.J. Super. 64; Kean Fed’n of Teachers, 233 N.J. at 586.

2. Disciplinary matters, performance or ethics of public employees

All discussions regarding the employment or appointment of a public employee, including interviews, and all discussions regarding evaluation, promotion, disciplining or termination of a public employee may be held in closed session unless the employee requests a public meeting in writing. N.J.S.A. 10:4-12b(8). Even where a public employee is guaranteed by state statute a public hearing on termination, the public body may go into closed session to deliberate. See N.J.S.A. 10:4-12b(9) and Della Serra v. Mountainside, 196 N.J. Super. 6, 481 A.2d 547 (App. Div. 1984). But where the public body is appointing a person to fill the unexpired term of an elected official, closure is not permissible. Gannett v. Board of Education of Manville, 201 N.J. Super. 65, 492 A.2d 703 (Law Div. 1984). However, anytime a public body intends to conduct a closed meeting involving the employment, appointment, termination of employment, terms and conditions of employment, evaluation of the performance of, promotion or disciplining of any specific public officer or employee, it must provide written notice in advance to the affected employee. Rice, 155 N.J. Super. 64; Kean Fed’n of Teachers, 233 N.J. at 586.

3. Dismissal, considering dismissal of public employees

All discussions regarding the employment or appointment of a public employee, including interviews, and all discussions regarding evaluation, promotion, disciplining or termination of a public employee may be held in closed session unless the employee requests a public meeting in writing. N.J.S.A. 10:4-12b(8). Even where a public employee is guaranteed by state statute a public hearing on termination, the public body may go into closed session to deliberate. See N.J.S.A. 10:4-12b(9) and Della Serra v. Mountainside, 196 N.J. Super. 6, 481 A.2d 547 (App. Div. 1984). But where the public body is appointing a person to fill the unexpired term of an elected official, closure is not permissible. Gannett v. Board of Education of Manville, 201 N.J. Super. 65, 492 A.2d 703 (Law Div. 1984). However, anytime a public body intends to conduct a closed meeting involving the employment, appointment, termination of employment, terms and conditions of employment, evaluation of the performance of, promotion or disciplining of any specific public officer or employee, it must provide written notice in advance to the affected employee. Rice, 155 N.J. Super. 64; Kean Fed’n of Teachers, 233 N.J. at 586.

O. Real estate negotiations

P. Security, national and/or state, of buildings, personnel or other

Discussions regarding "tactics and techniques" to be used in protecting the safety and property of the public may be conducted in closed session, provided that "disclosure could impair such protection." N.J.S.A. 4:10-12b(6).

Q. Students, discussions on individual students

IV. Procedure for asserting right of access

A. When to challenge

1. Does the law provide expedited procedure for reviewing request to attend upcoming meetings?

The OPMA provides that any person may apply to the Superior Court "for injunctive orders or other remedies" to ensure compliance with the provisions of the statute. N.J.S.A. 10:4-16. An application for an injunction prohibiting a public body from holding a closed meeting or emergency session will receive an expedited hearing when done by Order to Show Cause. See N.J. Court Rules 4:52, 4:67 and 4:69.

2. When barred from attending

Whenever a member of the public believes that a meeting is being held in violation of the act, that person shall immediately state this at the meeting together with specific reasons, which shall be recorded in the minutes. If the objections are overruled by a majority of the public body, any member of the body objecting may continue to participate at such meeting. N.J.S.A. 10:4-17..

3. To set aside decision

A suit to set aside any action of a public body taken in noncompliance with the Sunshine Law must be commenced within 45 days after the action sought to be voided has been made public. N.J.S.A. 10:4-15.

4. For ruling on future meetings

Any person may apply to the Superior Court for a declaratory ruling on access to future meetings of a public body where it can be shown that there is a pattern or practice of noncompliance with the provisions of the Sunshine Law. See N.J.S.A. 10:4-16.

5. Other

B. How to start

There is no provision for an administrative challenge to any action of a public body taken in noncompliance with the OPMA. All challenges must be made to the Superior Court by way of an action in lieu of prerogative writ. See N.J.S.A. 10:4-15 and 10:4-16.

1. Where to ask for ruling

a. Administrative forum

b. State attorney general

c. Court

2. Applicable time limits

3. Contents of request for ruling

4. How long should you wait for a response

5. Are subsequent or concurrent measures (formal or informal) available?

C. Court review of administrative decision

1. Who may sue?

"Any person" may bring a suit in Superior Court "for injunctive orders or other remedies" to ensure compliance with the Sunshine Law or to void any action taken by a public body in noncompliance with the Sunshine Law. N.J.S.A. 10:4-15 and 10:4-16.

4. What issues will the court address?

a. Open the meeting

b. Invalidate the decision

c. Order future meetings open

5. Pleading format

The court action is initiated by a Complaint in Lieu of Prerogative Writs which alleges the public body's noncompliance with specific provisions of the OPMA and which requests specific forms of relief. See N.J.S.A. 10:4-15 and 10:4-16.

6. Time limit for filing suit

A suit seeking access to a future meeting must be commenced before the meeting is conducted. A suit seeking to void any action taken by a public body in noncompliance with the Sunshine Law must be commenced within 45 days after the action sought to be voided has been made public. See N.J.S.A. 10:4-15.

7. What court?

8. Judicial remedies available

The court can void any action taken by a public body in noncompliance with the OPMA or issue injunctive relief or any other remedy necessary to ensure compliance with the OPMA. See N.J.S.A. 10:4-15 and 10:4-16.

9. Availability of court costs and attorney's fees

10. Fines

On complaint of the Attorney General or the County Prosecutor, any person who knowingly violates any provision of the Sunshine Law shall be fined $100 for the first offense and $500 for any subsequent offense. N.J.S.A. 10:4-17.

1. Appeal routes

2. Time limits for filing appeals

The time limit for appeal to the Appellate Division is 45 days from entry of the final judgment or Order. Rule 2:4-1. A petition for certification seeking review by the Supreme Court of a final judgment of the Appellate Division must be filed within 20 days of entry of final judgment. Rule 2:13-3.

3. Contact of interested amici

Amicus briefs on important Sunshine Law issues are filed by the New Jersey Press Association and/or some of the major newspapers circulated in New Jersey, such as the Newark Star Ledger, The Trenton Times, The Philadelphia Inquirer, The New York Times and the Gannet group newspapers. In addition, the Reporters Committee for Freedom of the Press frequently files amicus briefs when important Sunshine Law issues are before the New Jersey Supreme Court.

V. Asserting a right to comment

A. Is there a right to participate in public meetings?

N.J.S.A. 10:4-12(a) requires that a body set aside a portion of every meeting, the length of which is to be determined by the governing body or board of education, for public comment on any governmental issue or school district issue that a member of the public feels may be of concern to the residents of the municipality. This section is, however, limited to meetings of governing bodies and boards of education.